ICE Arrests Operator Of Seized Domain; Charges Him With Criminal Copyright Infringement
from the is-there-secondary-criminal-infringement? dept
While Homeland Security's Immigration and Customs Enforcement (ICE) group has been seizing lots of domains under questionable legal theories, it has been slow to follow through on any sort of actual lawsuits. However, with one of the domains seized a month ago, channelsurfing.net, ICE has now arrested someone and charged him with criminal copyright infringement, such that he's now facing five years in jail (as well as fines). This is interesting, because when that domain was seized, we had noted that channelsurfing did not appear to host any content itself, but merely embedded content from other sites. That raises an awful lot of serious questions: specifically, what part of copyright law is infringed here. The site does not host any of the content. It does not make any copies. It does not distribute the content. All it does is put in a snippet of code that a user's web browser then uses to request content from another site.About the only thing that could be claimed is some sort of "inducement" claim -- but as we discussed recently, there's simply no such thing as criminal contributory infringement, so if that's the claim, then it would appear that ICE (yet again) is simply making up what it wants the law to be, rather than what the law actually says. Now, there may be more to this than has been made clear to date. Perhaps there's evidence that the site actually did host content, but that was not clear from what I saw earlier. Some have said that there's an "aiding and abetting" charge to be made under criminal law, but as we pointed out in the link above, the standard for aiding and abetting are much, much higher, and there's little evidence that ICE has enough to meet the aiding and abetting standard.
On top of this, there are serious questions about why this should be a criminal claim, rather than a civil claim. ICE appears to be using the fact that the guy, Bryan McCarthy, made some money, from ads on the website, as the basis for the criminal charges. But that seems like a stretch (at best). While we still question why there should even be such a thing as criminal copyright infringement, even if we accept the idea that it does exist, isn't it supposed to be focused on those doing significant behavior where the connection between the infringement and the money making is clear and direct? Putting some ads on a website that earn a small amount of money (as is the case here) shouldn't be enough to trigger criminal infringement claims. Anyone can put ads on a website. That, alone, shouldn't shift liability from civil to criminal.
No matter what, this will represent a lawsuit worth watching. I'm always nervous that tough cases make bad law, and I could definitely see how certain aspects of this case could obscure the key issues. It will come as a surprise to no one that I'm greatly troubled by a criminal charge here, but it should worry almost anyone who has a website and has ever embedded videos. I have, for example, frequently embedded YouTube videos on this site -- and some of those videos might have been infringing. On top of that, I make some money from advertising on this site. Does that mean I now face criminal liability? I certainly hope not, but that seems to be the incredibly chilling message that ICE is sending. It immediately makes me question if I can ever embed another video without first getting explicit permission from the copyright holder.
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Filed Under: channelsurfing, copyright, criminal, homeland security, ice, infringement
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What if they can somehow prove that the guy running the site was also the one uploading the material to the third party streaming services? That seems to be how a lot of TV linking sites operate.
Obviously the act of uploading the material would make him liable for a DMCA takedown followed by a lawsuit if he filed a counter-notice. And the aggregating and linking/embedding is not in itself infringement (and certainly not criminal infringement.) But if it is demonstrable that the same person is doing both, I can see how that might change the nature of the situation under the law - I'm just not sure how exactly. Thoughts?
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Really? Citation, please.
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Now like I said, I could be wrong - it's just my impression. I'm just curious to know how this would play into the legal aspect of it, and if it is something they are going to be trying to prove in court.
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That should do it, right? I mean, if this doesn't stop pirating I just don't know what will.
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I'm not a proud American citizen, or a patriot, I'm fucking disgusted at the state of this "amazing union".
Our country is so desperate to snuff out any single person's creative flame it's like a god damn plague. Because in America, equality doesn't mean a fucking thing, the only thing that matters is who has the biggest gun, and the most expensive lawyer. Corporate criminals get away with stealing billions of dollars a year, tax payer dollars, our money, and after getting our money taken, they sue us for watching the album/film/tv show we want to watch for free, or for taking masses of samples and making an entirely new song. As much as creativity is sold in a school format, anyone with half a brain knows that being creative or different is a death sentence in this country.
I just don't see how the US government is going to file a suit against anyone who has ever watched a video on youtube or listened to a song on project playlist.
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Re: nothing will stop piracy
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errrr
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The guy was making money distributing copyright material. It's not hard to follow.
What I find amusing in all of this is that it sort of puts a major hole in all the people (Mike including) whining about "seizing domains for no reason". Clearly, they were headed somewhere with the action.
Enjoy the results.
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That's all beside the point though, since he can be charged based on the value of the works he infringed or assisted others to infringe. The amount he took in from ads doesn't really matter if the value of the works infringed are great--which apparently they are here.
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You make it sound like it was a ton of cash there, boss.
Even you must realize that his actual profit would be much less when you include in server maintenance, upkeep, bandwidth and overhead costs in there.
It's kind of funny, when talking about the price of a song: We MUST consider things like distribution costs and corporation overhead, but when talking about dirty rotten pirates: The only important figure is the gross income.
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As I read the statute, it's the "retail value" of the works infringed that matters, not the "distribution costs and corporate overhead" as you suggest. Those costs are built in to the retail value already, no?
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And my point was that his profits are actually much less than the $90K you quoted.
As I read the statute, it's the "retail value" of the works infringed that matters, not the "distribution costs and corporate overhead" as you suggest. Those costs are built in to the retail value already, no?
And it still strikes me a odd that when asked why the industry cannot sell a song for $0.20 - the response is along the lines of "My God are you crazy man? That won't even cover the label's overhead and the artist will starve - do you want the artist to starve?"
But, on the other side of the coin, when it concerns someone else profiting on alleged piracy it's: "He made $90K!" without even considering what his actual profit is after expenses.
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While not relevant, his actually costs are likely very low, considering he wasn't feeding those streams from his own server. I suspect he could have run it on a $100 a month server package.
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Also specifically for criminal charges mens rae has to exist as well, with the onus on the prosecutor to show that there is ABSOLUTELY no reasonable doubt whatsoever that the defendant had absolute intent to both Aid and abet third parties knowingly and for the purpose of commercial gain.
Mike is also correct in stating that 90K is minimal, since it absolutely is a minimal amount of money in this sort of situation. In fact even though it might sound like a lot to the layperson, it's actually a negligible amount.
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That's 18,000 a year. That nearly poverty-level income.
Sure sounds like a "small amount of money" to me.
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Your right! Encrypted sharing, private networks, it is considerably better than it used to be...
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...not quite.
He was publishing a search index/engine.
He was like a little highly specialized Google.
In truth, he was providing a proverbial "map and a flashlight" to anyone that wanted to find stuff. This could be "evil pirates" or law enforcement. If anyone with any brains was in charge here, they would have used this search index to shut down the primary infringers.
"contributory infringement" is a dubious thing bound to lead to all sorts of nasty "unintended" consequences.
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Re: ...not quite.
The content was embedded into his site. Not a link to another site, but actually as part of his pages. He was seeking to profit by including copyright violating material on his pages.
It's not hard to see.
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Re: Re: ...not quite.
The content was embedded into his site. Not a link to another site, but actually as part of his pages. He was seeking to profit by including copyright violating material on his pages.
It's not hard to see.
Embedding is the same as linking in that the infringing work never technically crosses the server of the one doing the embedding or the linking. The Ninth Circuit refers to this as the "server test" in Perfect 10 v. Google. This way, one who embeds or links is not a direct infringer because they don't actually reproduce or distribute a work. Instead, they are helping others to infringe. In the civil law context, this leads to secondary infringement liability, and in the criminal law context, it leads to aiding and abetting.
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The guy was distributing? Citation, please.
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Now if the content owner is not getting his compensation or has not given permission to the website where the content is at, then the problem/"piracy" is at the actual site hosting and profiting from said content. The site should be ordered to take down content or face legal action, like the process that is currently in use and spelled out by law. The site takes down the content, the link/embeded content doesn't work and people move on to something else to view. The system was already handling this issue in an orderly and fair way for all parties involved. Your sermon from on your soapbox seems misguided and incorrect for this case as has been reported here. By your logic, the majority of blogosphere linking to stories, photos, vids, etc to support their content would be subject to the same consequences as the so called "pirate" in this article.
Now, if the so called "pirate" was actually hosting/distributing the content and getting paid directly for that act and disobeyed cease and disist orders for doing that, that is a different matter...
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The first two, 17 U.S.C. 506 and 18 U.S.C. 2319(b)(1), are criminal copyright infringement. The third, 18 U.S.C. 2, is aiding and abetting.
I believe the court in this case will shred all of your FUD surrounding these seizures. I also believe that the court will make clear that linking sites are aiders and abettors.
I disagree that "the standard for aiding and abetting are much, much higher, and there's little evidence that ICE has enough to meet the aiding and abetting standard." I think it's quite easy to make a case on an accomplice theory, and that's PURE FUD.
Your FUD about whether criminal infringement, "even if we accept the idea that it does exist," is ridiculous. Of course it exists. It exists in those two statutes McCarthy is charged with.
What are you so "nervous" about, Mike? Worried your pirate buddies are getting busted? But I thought piracy was "not O.K."? LOL! Whatever you say, brother.
And, good grief with the FUD about whether you "can ever embed another video without first getting explicit permission from the copyright holder." Give me a break! You've got your FUD-phasers set to "super dumb" today.
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I believe the court in this case will shred all of your FUD surrounding these seizures. I also believe that the court will make clear that linking sites are aiders and abettors."
So.. Google is next right? After all their search engine provides links.
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Right, just soon as we get put away all of those pesky bloggers who embed Youtube videos. The filthy, rotten criminals that they are.
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Running a website like http://channelsurfing.net/ is EXACTLY the same thing as a blogger embedding a YouTube video.
The internet is now broken forever. Thanks, pirates. :)
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LOL! :)
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Someone embedding a youtube video isn't taking any risks unless their entire site is dedicated to "illegal videos on youtube". They have to form the intenent. This guy's intent is to frame TV streams with his ads, and to profit from traffic of people looking for illegal feeds. It's not hard to see the difference.
Well, it might be, especially if you are trying to be whiny.
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So you can stop the FUD now, you are ignorant of the facts as everybody in here and are just making shit up.
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I voted your comment funny because of this.
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Nathan
*steps off soap box*
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Nathan
*steps off soap box*
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That raises an awful lot of serious questions: specifically, what part of copyright law is infringed here.
It doesn't raise much Mike, because much of it comes down to intent. Playing games with technical issue (it isn't the site, it's the browser) is amusing, but meaningless. People came to his site in order to obtain access to copyright material illegally, he was "aiding and abetting". He wrote the HTML, essentially directing the browsers to do X or Y. Without his help (there is that "aiding and abetting" thing again) users would not have had access to the material.
Further, without the copyright material on his site, nobody would have visited his site and caused him to have income. Thus, you have commercial copyright violation, aiding and abetting, and so on.
It's like the legal tiddlywinks of torrent sites. You can play around with "the torrent is here" "the tracker is there" "Who's on first", but in the end, intent is key, especially in US law.
Remember, you can go to jail for selling someone salt, if you claim it is rock cocaine. It isn't the drug that matters, it is your intent.
So sorry Mike, the feds are busy proving you wrong again.
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Please tell me you're not going to pretend that that intent is not likely there in this guy's mind.
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The court here explains it well:United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1119-21 (N.D. Cal. 2002)
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1201(a)(1) - (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.
Exceptions to that rule are doled out by the Librarian of Congress.
Moreover, I also fail to see why creating the necessary tools to do something completely legal (like RealDVD) should be illegal.
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If intent matters here, then the anti-circumvention clause of the DMCA should not exist.
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The salt/cocaine example brings up the defense of impossibility: http://en.wikipedia.org/wiki/Impossibility_defense
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Anyway, my real point about intent as it relates to DMCA anti-circumvention is above, and I am still curious to hear how you respond.
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Agreed. Like I said, my only point in bringing this up was to refute the other AC's assertion that intent is everything - which it doesn't seem like you agree with anyway.
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This case involves criminal copyright infringement under the criminal code 18 U.S.C (sec. ?), while the DMCA is a civil law under 17 U.S.C. (sec. ?) that imposes civil (read money) rather than criminal (your freedom) liability.
Criminal copyright infringement (like all copyright infringement) is also in 17 USC, specifically 17 USC 506. 18 USC 2323 deals with civil forfeiture proceedings (for both copyright and trademark infringement).
The DMCA is in 17 USC 512. It explicitly says "monetary relief, or [...] for injunctive or other equitable relief." So, it is not limited to civil infringement. If you obey that law, you're not liable for civil infringement, and you're innocent of criminal infringement. (Even if it wasn't explicit in the law itself, it seems like obeying takedown notices should exempt you from "willful infringement.")
Did this guy obey takedown notices? Who knows. Certainly there was no attempt by ICE to find out, at least none mentioned in the seizure affidavit.
The rest of your post I agree with.
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The DMCA is in 17 USC 512. It explicitly says "monetary relief, or [...] for injunctive or other equitable relief." So, it is not limited to civil infringement. If you obey that law, you're not liable for civil infringement, and you're innocent of criminal infringement. (Even if it wasn't explicit in the law itself, it seems like obeying takedown notices should exempt you from "willful infringement.")
Did this guy obey takedown notices? Who knows. Certainly there was no attempt by ICE to find out, at least none mentioned in the seizure affidavit.
The rest of your post I agree with.
Criminal copyright infringement is addressed in 17 U.S.C. 506 and 18 U.S.C. 2319.
Obeying takedown notices is not sufficient to avoid criminal liability. Imagine if I set up a website 100% devoted to piracy. All I do is put pirated movies, music, pay-per-views, etc. on this website. But, I also have a registered DMCA agent, and I always immediately takedown material when notified. Does the fact that I follow the DMCA takedown procedures negative the fact that I intentionally set up a website devoted to piracy? Of course not. That makes no sense whatsoever, and I'm surprised you don't realize this.
Whether McCarthy complied with takedown notices is completely irrelevant since he devoted his website to piracy.
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If you set up a website that is protected under 17 USC 512, and you follow those rules, then yes, absolutely, it does.
Don't like it, write your Congressman to change the law, like the rest of us have to do.
But there is a good point here. Is his site in one of those categories that is protected under 512? The links were not posted "at the direction of a user," they were posted by himself directly. Since he's not a "service provider" in any way, it looks like his site is not protected.
Even so - if he did in fact obey takedown notices, that should absolve him of "willful" infringement. Certainly he could be sued out of existence, and a judge could issue an injunction on his whole site (after a hearing of course). But he shouldn't be sent to prison.
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But you're right, he's not protected by the DMCA.
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Section 512 explicitly says that "I've got a DMCA agent, and we abide by all takedown notices" is absolutely, positively a "perfect defence to copyright infringement." Pretty much verbatim, in fact.
Your opinion of whether it is "ridiculous" does not change the fact that it is the law. If I have to live under laws I think are ridiculous, then so do you. Don't like it, write your Congressman.
(Also, a nitpick: following takedown notices is only one rule that sites have to follow. Still, the point stands: obey 512, and you're legal.)
Now, if you're not a website covered under 512 (like this site), you are not exempt from liability. Obeying takedown notices should, however, make you exempt from criminal liability, since it's a legitimate defense against willfulness.
But the guy can still get sued for his lifetime income, so it's not like "nothing bad could happen." The civil damages are so severe, they might even be worse than a criminal conviction for guys like this.
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But there is no protection if that site willfully infringes.
Your opinion of whether it is "ridiculous" does not change the fact that it is the law. If I have to live under laws I think are ridiculous, then so do you. Don't like it, write your Congressman.
I don't need to write anyone. You simply don't understand the law here.
(Also, a nitpick: following takedown notices is only one rule that sites have to follow. Still, the point stands: obey 512, and you're legal.)
Again, once you willfully infringe, the DMCA does not protect you.
Now, if you're not a website covered under 512 (like this site), you are not exempt from liability. Obeying takedown notices should, however, make you exempt from criminal liability, since it's a legitimate defense against willfulness.
It is not a defense against willfulness. Once you willfully infringe, you lose DMCA protection.
But the guy can still get sued for his lifetime income, so it's not like "nothing bad could happen." The civil damages are so severe, they might even be worse than a criminal conviction for guys like this.
He can go down criminally and civilly.
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You keep saying that, but it's simply not true. Nowhere is that mentioned in Title 17. On the other hand, 512 specifically says sites are not liable for "monetary relief, or [...] injunctive or other equitable relief." Nowhere in 512 is an exception for 506 mentioned. That exception simply does not exist.
You're pretty much pulling it out of your ass because you think that's the way the law should work. But it's not.
If the site follows the rules, the only relief - criminal or civil - is in 512(j), "Injunctions." And, in fact, 512(j)(3) makes it explicitly clear that ICE's actions are not allowed:
No wonder they ignored it, and no wonder you seem to want that section to just go away.
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hahahahaha!!! I could prove you wrong, but I don't feel like it right now! Nice!
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Not exactly. Section 512 says that if you're a website that falls under the categories listed, and you follow the rules laid out therein, then you are an innocent provider. Section 512 defines innocence.
That's common knowledge.
In other words, it protects a service provider for the infringement done by its users. Section 512 provides no safe harbor to those who themselves willfully infringe, nor does it protect those who willfully facilitate infringement.
If you're the owner of a website, and one of your uses infringes, then following the rules in 512 absolves you from any liability whatsoever. Including criminal liability. 512 explicitly says so.
The primary infringer (the user who uploaded the content) can still be charged, of course. So, if you're the owner of a website, and you upload content, you can still be charged - even though the website itself cannot be.
Say, for example, that the VP of YouTube was determined to be a criminal infringer. The government could charge that VP, send him to jail, and issue a permanent injunction against the infringing material he uploaded to YouTube. But the government could not hold YouTube itself responsible for his actions.
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Say, for example, that the VP of YouTube was determined to be a criminal infringer. The government could charge that VP, send him to jail, and issue a permanent injunction against the infringing material he uploaded to YouTube. But the government could not hold YouTube itself responsible for his actions.
That's the part where you're confused. If the owners of a website are willfully engaging in infringement on their website, then that website (i.e., the company that owns it) can be liable for the infringement.
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Rewind to 5 years ago. My intention is to set up and run a legal website that contains embedded links. In the legal climate of 5 years ago, I am guessing that you would be hard pressed to find someone who would tell you that simply linking or embedding to possibly infringing content would expose you to 3rd party contributory criminal charges.
Fast forward to the present. My intentions have not wavered, I still intend to run a legal website. The legal climate around me has changed, not my intent.
Furthermore, since my intent is to keep my website legal, how would I do so if I wanted to? This is not a new law passed by congress. This is an untried legal theory. Without precedence to rely on, how am I supposed to adapt and remain legal?
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Hypothetical.
I intend to sell rock salt as cocaine..
The undercover law officer knows that I intend to sell it as cocaine but also knows it is actually rock salt.
they purchase it.
I get arrested and charged.
Who's at fault.
Next question.
I intend to commit harm towards you.
I have no reasonable way of committing that harm but I tell the world I want to anyway
I have intent "guilt mind" and have actus of telling the world that I would if given "highly unlikely" the chance
does this satisfy any criminal conviction?
Next.
I unwittingly without prior knowledge poured what I assumed to be rock salt into a dish and sold it in my restaurant. Do I get charged with a drug crime becasue it actually turned out to be cocaine placed there by an ex employee? [lets not delve into negligence ok]?
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Specific and general intent crimes
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In the U.S. yes, you could be thrown in jail depending on the state.
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Source: Wikipedia: Assault
Specific and general intent crimes
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The state needs to prove intent so I find it difficult you would be found guilty of anything there, but I will not tell you I know of every little law that was passed in 500 years, there could be a way to make someone go to jail.
This is the scary part about laws, they are so many and so complex that nobody not even lawyers and judges can be certain of anything.
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http://en.wikipedia.org/wiki/Legal_impossibility
http://en.wikipedia.org/wiki/United_States_v._Thomas
http://en.wikipedia.org/wiki/People_v._Lee_K ong
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Sauce for the Goose
-Tort reform for the rich, crime and punishment for the poor.-
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The intent is to break the DRM. What you intend to do with it AFTER isn't the issue. Intent is to break DRM. Once it is broken, then you have other intentions.
See?
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First amendment rights and other areas of the Constitution from which fair use exists independent of the law trump that DRM clause.
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I'm not sure linking can be considered distribution, we are talking criminal here not mere infringement people need a damn good reason to keep sending people to jail.
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Since he tried to hide his identity he can't claim ignorance he almost certainly knew he was doing something wrong, the ad revenue is personal gain, the only way to fight this is the distribution and reproduction claims, he has a good chance in stating he was not a direct distributor or reproducer thus he didn't infringe on the copyright owners directly, those charges probably will be thrown out, now the inducement that is tricky.
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Explain that one. Has any court said that mere anonymity is proof of a guilty mind?
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I have no clue if this is a true legal argument or not, but my internal fairness meter screams bullshit on this one.
Acting in a secret is indicative of someone acting in secret. Period.
It's not an indication of a guilty mind at all. Sure, a guilty person MAY act secretively, but that does not, in any way, mean a secretive person is guilty of anything other than being secretive.
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Here's a thought...
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Yet, another example as to why I could never be a lawyer.
So now, in addition to what I learned earlier this week with the whole logic vs law debate on the jury nullification article where lawers need to be able disconnect thier logic circuits concerning things I always believed where Boolean relationships:
- Something can be both legal and illegal
- I can have a right, but not have that right
- I can have a power, but not be able to use it
- And if I want to exercise my power of jury nullification, I most certainly can't talk about it
I now see that to be a lawyer one also needs the ability to disconnect their sense of fairness too.
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I think the problem a non-lawyer sees with this is this:
Where exactly does the line between "covering one's tracks" and "protecting one's privacy" fall. And who exactly determines that?
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That part seems fair.
When it wouldn't be fair if my secrecy or desire to remain anonymous it was the only basis for a warrant or asset forfeiture.
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I find that most things in law are fair if you look at the big picture and not just one side's interests.
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I agree. And some things in law are not fair. And some (like this thread) appear unfair on the surface, but less so at the core.
And none of that will deter me from weighing legal issues against my internal sense of righteousness.
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Shredding a document would qualify as the first, but your posting as an Anonymous Coward would qualify as the second.
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There's a difference between covering your tracks after the fact and not leaving tracks in the first place. Shredding a document might be destroying evidence. Posting as AC is indeed an attempt to hide identity.
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Lazyness != Guilt.
(cause only the guilty are anonymous.... right? Or was that only the anonymous are guilty??)
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Like all those in the government/military working on secret stuff?
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That's a different type of secrecy, so I wouldn't compare the two.
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And since you are hiding your identity, you almost certainly know you are doing wrong too, huh?
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Actually, in the US, criminal law is based on two elements: the intent (guilty mind or mens rea) and the prohibited act (actus reus). One without the other will not result in criminal liability.
Criminal intent without a criminal act = no crime.
Criminal act with no intent = no crime.
Both intent and act must be present. So your claim that "intent is key" isn't really accurate. It's only half the equation and it's no more "key" than the other half.
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Just out of curiosity, where would that leave something like manslaughter?
which if I remember rightly is accidental killing.
You're not intending to kill the guy next door but somehow you have?
That is a criminal offence is it not?
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Not all crimes require criminal intent, but generally they do.
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Just out of curiosity, where would that leave something like manslaughter?"
It depends upon whether the negligent actions were willful.
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Willful negligence? Is that like an intentional accident? Or a jumbo shrimp?
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> leave something like manslaughter?
In that case, the intent isn't the intent to kill, it's the intent to engage in grossly negligent behavior.
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The truth is but a meaningless technicality to copyright apologists.
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Have you even seen this guy's site? Check out the site he set up after the first one was seized: http://channelsurf.eu/
He personally posts links to facilitate infringement. It's not some innocent search engine.
Justify that.
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The feds are aiding and abetting the creation of court precedent that will sink the copyright tyrants.
>> Remember, you can go to jail for selling someone salt, if you claim it is rock cocaine. It isn't the drug that matters, it is your intent.
But can you go to jail for telling someone where to find what you think may or may not be rock cocaine or anything else for that matter and when you don't know who that person is or what they intend to do with that information?
>> Further, without the copyright material on his site, nobody would have visited his site and caused him to have income.
What copyright material on his site? [I haven't looked at the site, but I presume you mean the link addresses.]
>> People came to his site in order to obtain access to copyright material illegally, he was "aiding and abetting".
How do you know what people came to his site to do?
What about the people who came to find online files in order to leverage fair use? You can apply fair use to any digital content.
What about the people who have authority to that material and find it more convenient to use Google or that site directly in order to recapture the information (eg, when they lose their copy or maybe they have a blanket license to a very large number of works)?
What about law enforcement who want to know where to find the actual sites that are hosting this content and value knowing that information?
What about the fact that the copyright owner of those links might allow the public to gain access?
What about the fact that you can't know what is in those files until you download them yourself?
These are all legal uses.
If you find something online, eg, www.apple.com or www.xyz.com, how do you know who is the rightful copyright owner of the material hosted there and what their wishes are?
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I love bold statements like this with bf-all to back them up. Vapid sloganism.
But can you go to jail for telling someone where to find what you think may or may not be rock cocaine or anything else for that matter and when you don't know who that person is or what they intend to do with that information?
Yup. Same thing, the intent to traffic drugs. If you are standing on the corner and guy says "where do I get rock" and you say, "hit my supplier bob over there, he will hook you up good" because Bob is giving you rock to do it, then yes, you are part of the conpiracy to traffic drugs, even if they aren't drugs. Intent.
What copyright material on his site? [I haven't looked at the site, but I presume you mean the link addresses.]
You visit his site. The videos play on his pages. From what I can see as a layman looking, the videos are "on his site". I don't go somewhere else to get it, I go to his site. He chooses to include the content as part of his presented site. Embedding doesn't create some get out of jail free card.
How do you know what people came to his site to do?
What about the people who came to find online files in order to leverage fair use? You can apply fair use to any digital content.
...and on and on. It's like a torrent site. Everyone blabbers on about all the legal uses of torrents, all the linux distributions and all that crap. Then you go look at the traffic, and legal software is about a rounding error in torrent traffic. Look a the top lists, the most popular, the most traded... all pirated content. There may be people who come to his site for pure research for their college term paper, but if that was the case, his site wouldn't be very popular, would it?
What about the fact that the copyright owner of those links might allow the public to gain access?
They they should do it on the copyright holder's site. Did they grant this guy distribution rights? Did they grant him a license to present their content as part of his site? Does he have rights over the content, the trademarks, or anything else? Nope.
If you find something online, eg, www.apple.com or www.xyz.com, how do you know who is the rightful copyright owner of the material hosted there and what their wishes are?
You look for things like copyright notices, things like that. Your first clear assumption is that everything is copyright to someone, unless it is in the public domain or comes with a CC license of some sort.
If you see content from site A playing in a window on site b, you might wonder if site A is allowing it. When in doubt, just go to site A to enjoy the content rather than site B.
Heck, even simpler: If the site is "pirate" or "hack" or "access forbidden content" or "hijacked" anything, you can sort of figure it out.
If it walks like a duck, and quacks like a duck, it's either a duck or Mike Masnick in a duck suit.
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Well, the feds and lawsuits are going to get enough people upset to demand their basic rights be respected and otherwise change the law.
Copyright law enforced online makes it impractical to use the Internet.
>> Yup. Same thing, the intent to traffic drugs. If you are standing on the corner and guy says "where do I get rock" and you say, "hit my supplier bob over there, he will hook you up good" because Bob is giving you rock to do it, then yes, you are part of the conpiracy to traffic drugs, even if they aren't drugs. Intent.
No your scenario assumes there are no legal uses for crack and that the person selling is acknowledging that it is for illegal use and is participating in illegal use as well.
None of those three apply for copyright in general and I tried to work my sentence to suggest that.
>> From what I can see as a layman looking, the videos are "on his site". I don't go somewhere else to get it, I go to his site.
Then, if he was merely linking, what happened is that your browser (your computer) decided to go to another site and ask for the material. Then it also means that other website gave it to you after your computer requested it.
If you are a layperson, you should be off the hook as explained below, but below you stop assuming the person is layman. You can't have it both ways.
.. and the person giving information still isn't distributing.
>> Then you go look at the traffic, and legal software is about a rounding error in torrent traffic. Look a the top lists, the most popular, the most traded... all pirated content.
You ignored all the other stuff I said, but as for downloading copyrighted works without having a license already, you can't even know what you have until you have downloaded it (or part of it if you are streaming). You are assuming that there is no fair use on copyrighted material. In particular, most people believe they can at least look at something once if it was online and made readily accessible to them. 17 USC 106 acknowledges you can use material to teach and for various other purposes.
Most content online is presumably legal. I also don't think anyone wants a law that makes it ridiculous to view online content in real-time because of legal uncertainties. And if people are unsophisticated, how the heck do they know what is a "torrent" or what copyright law says is fair use or not?
>> They they should do it on the copyright holder's site. Did they grant this guy distribution rights? Did they grant him a license to present their content as part of his site? Does he have rights over the content, the trademarks, or anything else? Nope.
You can't know this until you figure out who the copyright holder is and then have that person sign a declaration that they have in fact not allowed this other person to distribute.
A corporation might be expected to go to the trouble and costs to do this or to possibly be held accountable, at least once they start distributing for profit. However, merely looking at something by a "poor" human who lacks means compared to most corporations? That seems like a Constitutional violation or of fair use or of other protected or implied rights.
>> You look for things like copyright notices, things like that. Your first clear assumption is that everything is copyright to someone, unless it is in the public domain or comes with a CC license of some sort.
So
(a) until you download and inspect (assuming you seek copyright notices on every 100 pixels you download from the Internet), you can't start to know and can reasonably expect someone put that out because it was legal. In other words, you can have reasonable expectation that what is online and accessible without a password is legal free speech. That is what the Internet is used for and most speech is supposed to be legal, at least to experience it the first time. .. At least that is a reasonable expectation.
(b) You can't know what is copyrighted by whom. You can try to believe some clues if you find them, but you can't know in most cases.
Have you done your "due diligence"? How many of the last 1000 images you downloaded from the Internet do you know who is the copyright holder and how do you know? [Your browser's cache likely has thousands of pictures as we speak, so test yourself with the last 1000 ordered by date.]
And please turn yourself to the authorities if you find anything where you do not have a license. YOU know enough about copyright law not to have an excuse.
>> If you see content from site A playing in a window on site b, you might wonder if site A is allowing it. When in doubt, just go to site A to enjoy the content rather than site B.
If you know that something is not from site B, they you likely know that those who link are in fact linking and not hosting since you have access to that fact when you inspect the hyperlinks on a webpage (a, object, img, and other html tags). [Ie, you are tech savvy user.]
You can control your browser to reject material from any site besides the one you are visiting (and if your browser doesn't have this feature, find one that does).. until you have time to visit the other site, find the owner, and ask for them to acknowledge that they have a license.. then go to the licensor for confirmation.
Do you browse the web doing that.. for every single image that your computer downloads?
>> Heck, even simpler: If the site is "pirate" or "hack" or "access forbidden content" or "hijacked" anything, you can sort of figure it out.
Don't be ridiculous. What the hell does being a "pirate" mean? So now all pirate content is off limits? We can no longer have discussions about pirates? or about "hack"? or ...? You aren't even making sense. Like I said, you either ban free speech or you question each and every component of every graphic and sentence.. you grab the graphic element's name and then start your research of asking about each such graphic "who are all whom you must license to have this"... Anyway, if someone lies to you, you likely will never know.
So the point is that the user should not be liable for looking at something online. It stifles speech and places ridiculous burden on the people browsing. Instead you assume all content is legal and that the government will go after those who host it after they receive a complaint.
Here is a variation of the earlier bold statement: It's a matter of time before the courts rule that people have these basic protections.
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The law is so broad that yes you can be found guilty of aiding and abetting, contributory, vicariously or all of them at the same time it depends on the judge and judges generally uphold those laws selectively, the law doesn't go after big players that often, but police use that to harass youth on the streets and instill fear in their hearts.
The law says that any person who contributes to a crime can be held responsible as a principal as long as intent is proven, so if you are found to have helped intentionally you are guilty just the same as the person actually committing the crime.
Contribution can come from inaction, information or anything that helps the a crime to occur.
Mind you that those laws are selectively enforced and are not clear for a reason and that is to give judges space to operate and in theory catch the bad guys, but are being abused.
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just so happens to jonesin to smoke soe rock ,and goes up to said black guy and purchases 10 dime bags from him,then gets arrested in the process,so can he say to the police "oh well that guy over there said be though that the guy i bought from was a crack dealer"so does that make you an accessory?or if the black guy happened to be undercover and entraping peolple and then tried to drag you you into it by sayin that you pointed him out ,or like the whole craigslist issue ,they post ads for "escorts" and "massuses" but most turn out to be prostitutes and abducted teenages of underage girls sold into sexual slavery ,its well known and documented and got alot of media attention when that slut got murdered in boston last year,but you dont see craigslist facing any charges do you?why ?,its because nobody gives a flying fuck about some busted fuck slut peddling her ass on the internet even if she does get shot and left in a dumpster,she or her family "if they even have one" dont have enough money to influence the system,but huge media companies do have money to influence the system,maybe their pimps make a good profit ,but nowhere near what kind of money we are talking about here,its totaly fucking out rageous ,not that i care about that busted fuck slut peddling her ass and selling access to her clownhole to the highest bidder on craigslist getting murdered,oh well she got what she deserved,her parent should stfu and stop making her out to be som angel who was just minding her own bussniess,thats what happens to people who get involved in that sort of thing,they should understan that thats the risk there taking when they decide to do that sort of thing,but if it were legal that shit wouldnt happen ,but back on topic ,why do you think the system would care more about prosecuting someone like this guy who has done nothing and whos action have not resulted in any consequences for the companies holding the copyrights ,not even a 1/18% of a penny drop in their stock price over the net 100yrs,but craigs list does something that could be considered similar according to the arguments people here are trying to make ,but listing on their site where to find prostitutes ,and in whcih their actions most indirectly esulted in a murder,and im not saying they should be held responsible or liable in anyway ,but you would think that if the law was really there to "protect people.the public"then they would care more about someting that results in murder albeit very indirectly,than something that results in nothing except some ceo paranoid delusion about some nonexistent trivial loss of un measureable profits,but they dont ,you know why?because the police ,the courts ,the prosecuters,the judges,DONT GIVE A FUCK ABOUT YOU,YOUR FAMILY,YOUR WELL BEING OR ANYTHING,except for making money ,bringing in revenu for the state and advancing their own careers and their political aspirations ,they dont give a shit about the public or justice or fairness or anything that is not in theor own narcicistic and monetary interest ,courts,police ,judges,lawyers,prosecutors,legislators,are not needed,they are all just bottom feeding leeches and a drain on society,so think about that all you douche bag law students here thinking you are doing something ,if i want to feel safe i will buy a gun,thank,i dont need government to protect me ,im more afraind of them than being a victim of crime
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Again, none of the content was actually in his possession. People could, and would have found it without him.
"Remember, you can go to jail for selling someone salt, if you claim it is rock cocaine. It isn't the drug that matters, it is your intent. "
That's not a good thing, in fact, it's disgusting. No laws were actually broken, who cares if you said you were selling cocaine, it was still salt. Once again laws focus on the morality than actual law...
There are millions of similar websites, are they going to arrest every single owner of said websites? What about when one of those owners is a citizen of another country? All the feds are trying to do is crucify this man in public, in yet another pathetic attempt to stop piracy.
All in all, the only thing the feds are proving is their eagerness to protect huge companies, and their self serving, blatant disregard for written law. This case has absolutely no substance. The feds are just making fools of themselves, and proving that they'll side with money over justice.
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Also, where's the FUD about these seizures? IS it the part where ICE is seizing things that are nothing to do with its domain? OF the part where a magistrate, who has no federal authority, sign off on a warrant without there being a specified jurisdiction? Or maybe, just, maybe, it's the part where they took down legitimate sites, where one hand of the labels didn't know what the other was doing?
And no, piracy isn't okay. But neither is the breach of contracts that Disney et al have done to copyright, raping the cultural coffers for money.
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And, really, you don't see the TREMENDOUS amount of FUD being presented here? Amazing. Truly amazing.
This is one the FUDiest pieces on Techdirt, ever. And THAT is saying something.
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No, what's being said is that he committed direct infringement himself by embedding infringing material (1) and then aided and abetted others by making those embeds available to others (2). Both charges can apply.
And I happen to agree that if the following two things can be proven, I don't have a problem with this guy being charged:
1. He knew the embeds were infringing
2. He willingly promoted the site to others for that purpose
The problem here is what Mike said: the chilling effects on unknowing or innocent embeds. If you embed a youtube video, it seems fair the you have a good-faith expectation that said video does NOT infringe. It wouldn't be right to expect people to automatically assume that youtube videos are infringing by default.
The answer here isn't to argue that this guy is innocent if it flies in the face of all the facts. The answer is to get the government and its agencies to lay out clear guidelines on willful vs. unwillful that can be used as a defense against these types of seizures.
Oh, and another thing. All you anonymous cowards that are holding up this one example to justify all the other seizures, particularly those that we've specifically discussed as problematic on this site: you people are batshit Charlie Sheen crazy. Get a clue, you ignorant bastards: both sides can have people in the wrong on it.
The Helmet hath spoken....
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Huh? Why's that? There have been LOTS of videos removed from YouTube because of infringement claims. So an expectation that such a video is not infringing would seem reasonable at all.
"It wouldn't be right to expect people to automatically assume that youtube videos are infringing by default."
It wouldn't "be right" for people to assume either way.
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Really, what 90% or much smaller? And of the claims, how many have been proven in court or simply gone uncontested perhaps for very practical reasons (eg, doubt not worth fighting over or expected lack of funds to fight it)?
And how is a person at home supposed to know this?
In fact, a person at home expects that this is all taken care of behinds the scenes.
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Wouldn't that increase the expectation that the remaining videos are not infringing?
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That first sentence makes fuck-all sense. I mean, he's aiding and abetting himself? Does he have a doppelganger who's helping him do all of this? 'Cause that's just about the only way I can see both being valid.
And I hope to God that ICE have all their paperwork in order, because if they don't, we could see this being a landmark case.
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Is that you Mr Hogan?
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Err, he says it outright: If merely linking to infringing material on a webpage with ads is worthy of jail time, the internet is in big trouble.
If I enable ads on my blogger.com page, and link to a YouTube video that ends up being taken down by a DMCA notice, should I go to jail?
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I pointed you to a detailed analysis of this point. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1166702
Do you disagree with this analysis? If so, why? Screaming "FUD" (when you do not appear to know what FUD means) is not a substantive contribution to this discussion, and I believe you were the one who have recently claimed that you were upset about non-substantive discussions on this site.
Your FUD about whether criminal infringement, "even if we accept the idea that it does exist," is ridiculous. Of course it exists.
I never questioned whether criminal infringement exists. I questioned whether criminal *contributory* infringement exists.
I have no problem with you challenging my positions, but at least try to comprehend them before throwing your hands up in the air screaming FUD.
What are you so "nervous" about, Mike? Worried your pirate buddies are getting busted? But I thought piracy was "not O.K."? LOL! Whatever you say, brother.
As stated in the post, I am nervous about the chilling effects of this. If I post embed a video on this site that turns out to be infringing, you are now saying it's okay that I might face five years in jail. You might not think that's chilling. But I'm the one risking jail.
You find it "super dumb." But you're not the one who is risking jail. It scares me that you will just wipe away the very real fact that I am fearful of being thrown in jail for linking to another site.
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Perhaps you haven't thought this through. All created content is copyrighted when created. logically by ICEs intepretation of the law, unless you get permission to embed a video you are guilty of a crime and can face up to 5 years in jail.
That is a truely chilling effect.
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Mike, if you were really scared, you'd be pulling down videos left and right. But I bet you don't pull down a single one. Wonder why... LOL! All FUD.
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That assumes he believes this is a correct interpretation of the law which, obviously, he does not... personally I lack the expertise to say for certain either way.
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That's what led to my comment way at the top of this post, wondering if they would have to prove that this guy was uploading the content to the third party sites himself...
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But, that's the whole point.
The direct infringers, the "principles" in legalese, were engaged in infringement, but not criminal infringement.
So, there was no "crime by some other party." His own acts, in and of themselves, have to be criminal. He cannot be guilty of "aiding and abetting" something that is not criminal in the first place.
Now, if his acts are criminal in and of themselves, and furthermore he assisted other people in committing his own acts, then he's also guilty of aiding and abetting. But from what I can tell, that's not what he's accused of.
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The direct infringers, the "principles" in legalese, were engaged in infringement, but not criminal infringement.
So, there was no "crime by some other party." His own acts, in and of themselves, have to be criminal. He cannot be guilty of "aiding and abetting" something that is not criminal in the first place.
Now, if his acts are criminal in and of themselves, and furthermore he assisted other people in committing his own acts, then he's also guilty of aiding and abetting. But from what I can tell, that's not what he's accused of.
In order to prove aiding and abetting, they will have to prove that someone else committed a crime. Apparently they think they can prove this. They also think they can prove that he's a direct infringer. We'll see.
We can sit around and guess about whether they really have this evidence, but it's just conjecture. What we do know is that the U.S. Attorney for the Southern District of New York swore to a magistrate judge that he had such evidence.
Hopefully they'll post the complaint soon so we can dissect it.
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Do you disagree with this analysis? If so, why? Screaming "FUD" (when you do not appear to know what FUD means) is not a substantive contribution to this discussion, and I believe you were the one who have recently claimed that you were upset about non-substantive discussions on this site.
I don't read that paper as standing for the proposition that it'll be all that difficult to convict McCarthy of aiding and abetting in the Second Circuit, where he's charged. Some analysis of the current aiding and abetting laws there as they pertain to the facts would be productive. Why don't you try that type of analysis sometime?
And I know EXACTLY what FUD means. And so do you. Don't play dumb. You are a level 10 Jedi FUD master.
I never questioned whether criminal infringement exists. I questioned whether criminal *contributory* infringement exists.
I have no problem with you challenging my positions, but at least try to comprehend them before throwing your hands up in the air screaming FUD.
As has been explained to you over and over and over, it's called accomplice liability, or aiding and abetting. 18 U.S.C. 2.
And now one your "friends" is being charge with it.
As stated in the post, I am nervous about the chilling effects of this. If I post embed a video on this site that turns out to be infringing, you are now saying it's okay that I might face five years in jail. You might not think that's chilling. But I'm the one risking jail.
You find it "super dumb." But you're not the one who is risking jail. It scares me that you will just wipe away the very real fact that I am fearful of being thrown in jail for linking to another site.
Do you really not see the difference between running a site like his and embedding a video on your blog? You can play the scared-blogger card all you want, but I'm not buying it. All FUD and you know it.
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ICE are just wrong.
He certainly can't be familiar with ICE.
...and ICE is the worst. They are an agency that are used to the fact that get to treat people like dirt because they have no legal status. They are bad people to be left in charge of anything that involves actual citizens.
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Tell that to the 80-some THOUSAND site owners whose domains were seized and replaced with a placard declaring them pedophiles.
It's all FUD until it happens to you, Chuckles.
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The cure is worse than the disease.
There is a nice German poem along these lines.
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No, I don't. Perhaps you can explain it to me.
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No, I don't see any difference between a website that embeds video streams and a website that embeds video streams.
(I can't believe I just had to say that. "I feel like I'm taking crazy pills!")
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Mike doesn't do that.
What's so hard about this point?
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Known? By whom?
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Nope as you so pointedly posted before, what you do have is a strong bias and presumption.
Most people wouldn't think it is illegal or a big deal to retransmit free over the air content, most will believe instinctively that if they are not cutting out the ads then they had caused no harm to anyone.
So if the reports are correct his emails could condemn or save him based on what is there, but according to some reports Brian(or Bryon) McCarthy has already reached out and said he would fight the seizures of his domain name, is that looks like somebody aware of infringement to you?
If in his personal emails comes out that he was clueless about the law all that intent to willfully infringe on copyrights is lost and criminal charges become harder and harder to prove.
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I went to his website, and I used my common sense. Check it out yourself: http://channelsurf.eu/
I'm not alleging to know any facts that I can't know. Of course it's my opinion on the matter. Duh.
I don't think his emails will save him. After ICE seized his first domain name, http://channelsurfing.net/ he replaced it with the second.
It's kind of hard to pretend like he wasn't on notice that maybe he was doing something wrong after the feds seized his domain name.
This appears to me to be a person who enjoyed thumbing his nose at the law. Perhaps a few years in a federal penitentiary will cure him of that.
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Saying an accused person deserves jail time for what amounts to jaywalking. Great strategy for innovation.
Tell you what, how about figuring out a supposed "crime" that actually involves infringed rights such as how to prevent or solve murders, rapes, and torture cases? Wouldn't that be a better use for the Feds time than going after what amounts to a civil lawsuit?
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Right. Not.
Look, I don't care if you guys think there shouldn't be copyright, but don't pretend like this guy is an Easter lily. Call him out for being what he is.
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I can't speak for others here, but I am a copyright reformer, not an abolitionist.
And personally, I don't care if this guy's site gets shut down. Before these seizures happened, I'd never heard of it. No skin off my nose.
But there's no way in Hell that this guy deserves to be sent to jail for what he did. If this should even be considered criminal (not civil), and that's a big "if," it should at most be a misdemeanor.
Criminal copyright cases are historically reserved for repeated, large-scale, commercial infringement. They should be going after commercial counterfeiters - or, for that matter, the labels who repeatedly violate artists' copyrights. Not some douchebag who runs a website as a glorified hobby from his dad's basement.
And before he gets punished at all - even with an injunction - he should at least get a chance to present his side of the story.
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Or is that fair use?
If I don't strip the ads from the original stream and I have no subscriptions it is that illegal?
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Are you sure? I've seen multiple instances in the past where Mike has linked to a YouTube video that he knows the studios are playing DMCA whac-a-mole with in an attempt to keep it off the internet.
Since he knew the YouTube video was infringing when he posted the link, wouldn't that constitute contributory infringement, and since this site has ads, criminal infringement?
Lock Mike up? Yes/No
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That is the absurdity of copyright in action.
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Infringement, civil or criminal, does not occur just because a rightsholder says so. A court has to determine it.
This case, the domain seizures, anything Mike or any other blogger links or embeds, anything disabled by Youtube filters - they are ALL putting the cart before the horse.
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I doubt that he can.
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Aren't you just a little punk looking for a fight. LOL!
Look at this guy's site: http://www.channelsurf.eu/
He goes out of his way to link to the new release movies, pay-per-views, etc.
Now compare that to the typical article on Techdirt that embeds a video from YouTube.
The difference is so obvious it hurts.
Does Mike have the intent to willfully infringe when he embeds a YouTube video? No. The intent element is not satisfied. No intent means no crime.
Do you think Mr. McCarthy intended to willfully facilitate infringement when he set up his website? Of course he did. That's the whole point.
Did I explain it enough, asshole, or should I keep pointing out the woefully obvious stuff to you?
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Should I call law enforcement or will you turn yourself in voluntarily?
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Since he was just applying your own reasoning, it seems to me that you're the one who really doesn't "get it".
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Not even close. There's no criminal intent on my part. Nowhere does my "own reasoning" indicate that linking to that site is per se criminal. Try again.
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You are just as guilty as the man you are accusing of criminal infringement.
Also don't try the impossibility defense, you yourself have pointed out it doesn't fly on U.S. courts.
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Hypocrite
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You are accusing a man of criminal copyright infringement and you opened yourself to the same accusations and if anyone would like to try and go after you they probably succeed if people take the law to the letter.
Good thing you are anonymous right?
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It is, however, civil contributory infringement. Would you like to pay by check or by credit card?
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If he gets money from an interested party that is financial gain and that linking could be said to be commercial in nature, if he is working for some entity that is a competitor to that service that could be seen as a commercial interest since posting that could harm the competitors of people who pay him.
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Sounds kind of like AJ.
"The difference is so obvious it hurts."
And, yet, you can't explain it beyond just because you said so.
"Does Mike have the intent to willfully infringe when he embeds a YouTube video? No."
Because you say so?
"Do you think Mr. McCarthy intended to willfully facilitate infringement when he set up his website? Of course he did."
Because you say so?
"asshole"
Yep, sure sounds like AJ.
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Quote:
How are you going to combat insulated networks?
Piracy numbers are down for music, but sales didn't pick up that means people found alternatives either legal(i.e. Jamendo, Magnatune, Youtube, Spotify, Pandora) or illegal ones that are out of reach of surveillance, where do you think things are going?
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Re: Accomplice
> an accomplice theory
In order to be legally guilty as an accomplice, you have to know the other perpetrators and affirmatively agree to enter into criminal activity with them. Merely linking to some other random person's website whom you do not know and have never even met hardly satisfies those elements of the offense.
This has been explained to you repeatedly, yet you seem to let it fly in one ear and out the other with absolutely no comprehension.
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Re: Re: Accomplice
AndUnited States v. Pipola, 83 F.3d 556, 562 (2d Cir. 1996).
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For example
>> �joined the venture, shared in it, and that his efforts contributed towards its success,�
This suggests to me that you have to know enough details to know that a crime is in progress.
>> To show specific intent the prosecution must prove the defendant knew of the proposed crime-suspicion that it might occur is not enough
So I think you are ignoring these court decisions.
Keep in mind that you can't possibly know if those going to your site have gotten a license or permission or if they are leveraging fair use. You can't possibly know if a crime is being committed (and "suspicion that it might occur is not enough").
Do you want to try again?
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For example >> �joined the venture, shared in it, and that his efforts contributed towards its success,� This suggests to me that you have to know enough details to know that a crime is in progress.
He knows the details of the crime in progress. In fact, his site is facilitating that very crime by design.
>> To show specific intent the prosecution must prove the defendant knew of the proposed crime-suspicion that it might occur is not enough So I think you are ignoring these court decisions.
He not only knew of the proposed crime, he went out of his way to ensure that it occurred. And while he profited from it, no less. He had more than suspicion. The very fact that the crime was working as planned was verified each time he received monies from the advertising on that site.
Keep in mind that you can't possibly know if those going to your site have gotten a license or permission or if they are leveraging fair use. You can't possibly know if a crime is being committed (and "suspicion that it might occur is not enough").
Possible licensing and fair use are not going to get this guy off the hook. He can't reasonably of thought that all of those first-run movies, sporting events, and pay-per-views were all legally licensed by others, much less licensed to him, or have thought that the millions of page views he was receiving were all fair use. Those are all just hollow rationalizations, and I can't imagine a jury ever would buy that.
Do you want to try again?
Nope. Don't need to. Do you?
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Even if he didn't know it was a criminal act?
Furthermore, for copyright cases, "knowledge" means actual knowledge of specific infringement. Even if he "can't reasonably of thought" that the content was licensed by others, that isn't enough - he must have had concrete knowledge that the specific material was actually infringing.
At least, that's the way it works in civil cases.
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most artists dont care about copyright,not true artists ,they freely distribute their own work for free most of the time anyway,its only greedy talentless sellout hacks that dont,and care about copyright,they have no reason to care,well unless they have their own independent label ,cause if they dont they have already signed away all of their profit to the record label ,so it doesnt matter ,they are already getting raped ,they are already making a fixed amount,an enormously low percentage of how much money they actually bring in,they get like 3% while the record company takes the 97% of the money they make off of someone elses talent for themselves,but even still ,people like brittney spears are going out and buying 25 million dollar mansions,so if there making that kind of money only seeing a small % of what their bringing in,then the record company must be bringing in obscene money off of just 1 "artist" alone,
this asshole troll needs to go crawl back under his rock and fucking die,the fucking corporate sicophant that he is
of course he had some vested interest in the matter ,could it be any more fucking obvious,either that or he is just one of the many brainwashed american sheeple drinking the corporate kool-aid,sorry but no artist tals like that ,not even the ones who are sellouts ,ok maybe fucking douche bag lars ulrich ,(but i would hardly call him an artist)
only lawyers and corporate douche bag scumfucks like this peice of shit here
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It's true that most of my musician friends that I talked with about these seizures were horrified and disgusted.
If this AC is who I think it is (I don't know for sure), then it's someone who is a law student.
Still, everyone's entitled to their opinion. Calling the guy a "douchebag" and telling him to "go kill himself" isn't really helpful. It's as bad as, say, claiming Mike is spreading FUD when he isn't, or claiming that the owners of pirate sites are his "friends."
...Oh, wait.
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Funny how selective the enforcement is.
The truth is it's not FUD, if successfully prosecuted, this case will do serious harm to the internet, and eviscerate safeharbor provisions which protect aggregation and search engine sites by requiring rightsholders engage in notice and takedown procedures.
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"Let's keep giving them rope" might be a strategy.
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Nope, you read it wrong.
It will certainly CHANGE the internet. It will allow for the potential of actual business models based on the rights granted in the constitution and the copyright law. Content producers will be able to move forward with business models without having to worry about competing against their own purloined content.
Those people who wish to release their content for free in the open net will be able to without restriction, there will be whole new markets for movies, music, and other creations because there will be certainty in the marketplace.
The current levels of piracy and "borrowing with payment" for content will go away over time, the laws (and the courts) are only just starting to catch up with the thieving little bastards who think they can thumb their noses at everyone for a few bucks and standing on their local chat board. The free ride train is entering the final station, enjoy walking from here.
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Two things that have been declared invalid and incorrect numerous times.
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How are you going to combat that?
Are you going to seize Jamendo assets?
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Mike said "criminal contributory infringement."
Why are copyright apologists such big liars?
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Is is possible to criminally aid and abet a civil infraction?
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you fucking corporate sicophant peice of shit
you must work for the riaa or mpaa
its fucking assholes like you,that think(and i use that term loosly)like you that are going to get all of our rights taken away,and the internet completely owned and controled by big multinational corporations and government,go fucking move to communist china,oh nevermind that would be too free for you as well you fucking nazi scum
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SOMEBODY needs to switch to decaf.
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You said it yourself.
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Plain and simple, and here's the FUD for you 'anonymous coward', if the USA continues to strengthen its absurd resolve in these situations, seizing domains without warrants, and slapping lawsuits on embedding sites, they are stifling and killing the internet within their borders. Watch as more and more web properties move outside of their 'so called' jurisdiction bs buddy buddy with verisign and .com .net etc...
It's up to you USA, either attack DIRECTLY the source sites of the videos properly, not the embeders, and do it with a proper due process, otherwise we're all moving out.
I'm not going to discuss what I do, but I have 200+ domains engaged in various activites, and I'm switching them all off .com to various European and Asian registrars. At least I know if someone in the bloody USA has a prob with me, they will have to jump through hoops to get anywhere.... working online in the usa is a lost cause at this point.
There's your FUD, anonymous!
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Read this earlier
90000 / 5 = $18000
Basically, you can flip burgers and make MORE than what this guy made on a site that offered to link to official sites.
Oh, he's also face 5 years of jail time to what amounts to a civil dispute.
So if you're going to say he's a filthy pirate, with NO content on his site, or the fact that the law exposed all of his details with little to no due process, please keep the story straight.
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Brian is 32 and still living with his father. So, with all things told, he may just run this for fun or some other benefit. The point stands that only focusing on the income without a look into expenses, or who benefits by the anticompetitive nature of the ICE takedowns, is trying to throw the baby out with the bathwater.
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The guy is 32 living with his father? 'Nuff said.
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Look at Criminal copyright infringement:
� 506. Criminal offenses
(1) In general. � Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed �
(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180-day 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.
(2) Evidence. � For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.
(3) Definition. � In this subsection, the term �work being prepared for commercial distribution� means �
(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution �
(i) the copyright owner has a reasonable expectation of commercial distribution; and
A) What financial advantage does he gain over the copyright holder? What does he gain by merely LINKING to already given material? If I LINK to xkcd on my website, I haven't given them any financial disadvantage. As a matter of fact, I've HELPED them.
B) A link, is NOT hosting the content.
It's not an excuse for piracy to note that the copyright holder probably made more than he did. Hell, it's not even a stretch to say that the ICE agents made about as much as he did!
What's inexcusable is that he is being charged with a criminal act for what amounts to something that needs civil redress.
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That's kind of a specious argument, no? I'm all for progress in copyright law, but let's not get petty about the details....
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Competitor = ???
But when that runs into the ground, here comes piracy.
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What I want, and I'll never ever get this, is for the government to actually do its damn job and become a moderate voice between the two sides and build out compromised rules that benefit both as much as possible. When did governments mistakingly start believing that they have to take sides in this crap?
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Loopholes?
Accused of infringement? $200 off the bat
Distribute? Criminal offense
Use more than a paragraph? $150,000 per infringement.
The concept of fairness does not equate to the large rewards for successfully bankrpting accused people of the financial equivalent of jaywalking.
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ICE jackboots
It's probably asking too much of law enforcement to exploit sites of this kind in order to prosecute the actual infringers.
Shutting down the Corleone Yellow Pages won't shut down the Five Families.
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Why, exactly, is that a "'nuff said"? Are you making some greater point, or are you just being a self-righteous, judgmental ass?
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Greetings, AC Trolls!
I dug around in there until I found what I was looking for and took it ALL. I took everything. I took the mp3s. I took the WAVs. I even took the unreleased and uncompressed stuff that was hidden at the way back of the drawer labeled "/index."
Anything I could find, I was taking. I even took the wallpaper and the cute "Hang in there. It's almost Friday!" poster I found hanging on the wall. I checked the back room as well.
I downloaded it all right into my bag (the white, roundish one with the music note printed on it) and sped away to Pirate Headquarters.
Once there, I spread out my take. Me and the other pirates cranked up the new tunes on the computer speakers and had a few drinks. We danced around a little and giggled a bit at the distraught kitten on the poster. The pirate management was happy and promoted me to Pirate-Second Class. There's no pay raise and it'll still be six months before I'm allowed to upload, but at least I don't have to clean the bathrooms anymore.
Long story short: we've got your music. You don't have it anymore. It's cleaned out. I don't even know why you'd bother getting out of bed tomorrow. Your career is over. How're you going to sell music when you're all out of stock?
Not only that, but if I'm understanding half of what you say, I also took an assload of your intellectual property as well. If it wasn't nailed down, I took it.
Better cancel those upcoming gigs. I've got part of your intellect now. Good luck playing the harpsichord or mouth harp or whatever it is that you used to know how to do. It's not going to be much fun standing in front of an expectant crowd watching your fingers trying to awkwardly interact with your favorite instrument. It'll be like watching two co-workers who slept with each other the night before.
Like I said, I was all over the place grabbing stuff. Hopefully, I didn't take too much of your IP, otherwise you may have trouble interacting with the public or forming coherent thoughts.
Good news, though. I can give it all back to you. Cheap. If you're willing to negotiate, you can have all your music and intellectual property back intact within mere hours.
However, if you don't want to cooperate, things will nasty very quickly. Do you recognize this?
0110011100001100111000110010
I thought so. If you don't act fast, I'm going to start pruning this stuff down to teeny, tiny stems and distribute them to every remixer and mashup artist on the planet. They'll be more than happy to build on this grab bag of IP and turn it into something enjoyable.
I'll be in touch.
Smooches!
CLT
Pirate - 2nd Class
Loosely-Confederated Pirates of America
A Division of Pirating Pirates Worldwide, LLC
P.S. ASCAP is hassling me about some sort of "public performance" royalties on behalf of you. I told them you had neither the evidence nor the skill to make that claim. They're headed your way now.
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Re: Greetings, AC Trolls!
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Re: Greetings, AC Trolls!
Let's be clear here. Did you really take it, or did you just make copies?
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Re: Re: Greetings, AC Trolls!
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Re: Re: Greetings, AC Trolls!
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Re: Re: Re: Re: Read this earlier
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/sarcasm
Can we get greed declared as a religion so that Congress shall make no law respecting an establishment of it?
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Response to: MrWilson on Mar 4th, 2011 @ 9:29am
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Response to: MrWilson on Mar 4th, 2011 @ 9:29am
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Criminal Copyright Infringement
It's WAY less clear if CCrI can apply to an aggregator, or if profits from just visiting a site hosting a file can rise to CCrI level, but CCrI can clearly occur.
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Oh Snap!
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Cherrypicking
I really never had a doubt that DHS/ICE/Justice Dept. would cherry pick a few of the weakest opponents to actually take to a trial in order to justify taking down the other 98% of the domain names.
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Re: Cherrypicking
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Re: Cherrypicking
This guy might plead guilty, setting a truly horrific precedent!
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Re: Cherrypicking
I really never had a doubt that DHS/ICE/Justice Dept. would cherry pick a few of the weakest opponents to actually take to a trial in order to justify taking down the other 98% of the domain names.
I think the main reason there aren't more arrests along with these seizures is because most of the purported criminals live outside of the US. This guy just happened to live in Texas.
How much do you want to bet that they seized his computers--and without a prior adversary hearing?
I hope this guy mounts the best defense in the world, and challenges the heck out of the domain name seizure. Keep in mind though that even if he gets the domain name seizure thrown out, he's still facing the criminal charges.
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Re: Re: Cherrypicking
Since he did not directly distributed or reproduced anything.
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Re: Re: Re: Cherrypicking
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Re: Re: Re: Re: Cherrypicking
They failed on the vicarious charge, but direct infringement?
This is secondary liability and you know it, who is making stuff up now?
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Re: Re: Re: Re: Re: Cherrypicking
They failed on the vicarious charge, but direct infringement?
This is secondary liability and you know it, who is making stuff up now?
No, I don't know it. I don't have inside info and there's scant public info. The complaint wasn't uploaded to PACER or Lexis when I checked an hour ago. The feds charged him with direct infringement. Perhaps we should see their explanation before we go about pretending like we know it's not possible. You're the one pretending to know things.
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Re: Re: Re: Re: Re: Re: Cherrypicking
http://iapps.courts.state.ny.us/webcrim_attorney/AttorneyWelcome
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Re: Re: Re: Re: Re: Re: Re: Cherrypicking
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Re: Re: Re: Re: Re: Re: Cherrypicking
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Re: Re: Re: Re: Re: Re: Re: Cherrypicking
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Re: Re: Cherrypicking
They probably did. I have no problem with seizures conducted with the intent to preserve evidence and have always stated that.
My problem arises with seizures that have nothing what so ever with collecting evidence and are basically punishment prior to a trial (ie: domain name seizures)
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Re: Re: Re: Cherrypicking
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$18000 per year
$346.15 per week
$8.65 per hour (assuming a 40 hour work week)
Minimum wage is $8.50 here in California.
So he was barely making minimum wage. No wonder he still lived with his father.
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Re:
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Okay, law enforcement must adapt to the dependence on non-physical goods but the legacy industries? Not so much. Got it.
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Aiding and abetting?
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Re: Aiding and abetting?
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Brushing up on the law LoL
1850 Copyright Infringement�Third Element -- Willfulness
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01850.htm
http://ww w.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01841.htm
http://itlaw.wikia.com/wiki/Wil lfulness
The government can't prove direct infringement that much is very clear, so they will go for the contributory or vicarious liability so they need to prove intent or reckeless disregard.
Is there anything that can prove willfulness on the part of that man? or something that shows he was reckless?
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Re: Brushing up on the law LoL
Ummm. Have you seen his site? http://channelsurf.eu/
Do you think he updates that site with links to the latest, hottest "stolen" videos, but then the jury's going to buy the idea that he wasn't intending to do anything wrong?
Intent can be inferred. In fact, it usually is, since the bad guy doesn't use tell the jury that he meant to do it.
Good luck with that.
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They just don't understand
It reminds me of the creationists arguments: Well, I don't understand how science can tell the earth is billions of years old, so therefore it must not be true. Just because YOU don't understand how something works, does NOT make it wrong/illegal/immoral or theft. Learn how the technology works first, then decide if it's infringing or illegal.
Oh, but I forget, lawyers run this country and they think they can argue facts...whether they're true or not.
... still waiting for the next internet...
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Basic legal change
Basically it's become this: If you are an individual, accused by a corporation or a large organization, it's assumed you are guilty and due process no longer, or is given lip-service (kind of like being a terrorist).
If you're a corporation/organization who's accused by an individual, you are assumed innocent until proven guilty, and the individual is considered suspect, in motive, intent and character (see Bradley Manning).
Basically all the rights rest with the money (i.e. the corps), and all the burden of proof lies with the individual. Since the corps can ALWAYS afford more legal help then 99% of the individuals, they will usually lose, thus setting even more precedent and example that this way is "right", "proper" and "legal".
Further and further down the rabbit hole we go.
"One nation, under incorporation"
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Disturbing.
I managed to acquire something like 400 over a decade, but I am white and relatively trim.
What worries me is setting a precedent not where you will be arrested because you posted a youtube video, but where you could be - similar to seat-belt laws in MA, which you will rarely be pulled over for on it's own, only if the cop doesn't like the look of you.
Profiling on the internet being more about social progression and political affiliation, it will be interesting to see how this plays out.
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Re: Disturbing.
that stifle competition and innovation,and trample all over consumers and their rights,so why should they be given carte blanch to hold neverending copyrights when even an industry that produces far more important products and at a much higher cost is not permitted to hold on to their intellectual property rights for even a decade,its absolutely outrageous,and you all have been conditioned through the media ,the very industry they own, to spout this crap propaganda that they have brainwashed you with ,that only serves them and is only in their best interest ,not yours,people are so stupid,stop fucking crying for these people who have everything, and make a million times more profit than they need to operate and stay a profitable busniess model,even if piracy was a million times what it is today they would still be profitable,thay would still be paying ceo and coo's millions of dollars,all the industry puts out now is crap,pure crap anyway,oh yea little red riding hood ,theres a movie i want to see,oh no hollywood isnt running out of ideas at all,i wont even get into tv cough*jerseyshore*cough,fuck these assholes,they are controling you,they are controling the government,they control everything to be in favor of big busniess who they represent or are one in the same with msnbc,ge/nbc,disney/abc,etc.. there are only 4 of 5 companies that control ALL MEDIA,tv,movies,radio,newspapers everything,except the internet,for now,now thats why they see the internet as threat to them,they dont want people to see or hear anything they dont want them to see or hear,or that they cant charge them for,great pay them to brainwash you and feed you their propaganda some more,thats why they want to either takedown or takeover the internet at any cost,cant have people thinking for themselves now can we,oh no people capable of critical thinking,and entertaing themselves and occupying themselves with out paying money to one of the 5 major media conglomerates,(well except the 50/60 a month for cable internet access),damn you internet
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Re: Re: Disturbing.
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Time for a new domain for Techdirt?
You might want to think about getting out of .com. Maybe .org, or .me. Something less seizable, that's the main thing. Just saying.
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Re: Time for a new domain for Techdirt?
Those work.
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Re: Re: Time for a new domain for Techdirt?
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Re:
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ICE Lawsuits
Unless one knowingly commits a criminal act, one should be free from governmental harrassment in posing their views, reposting the views of others they agree with and/or their podcast's - videos. Is it not legal to "quote" another person, magazine article, advertisement etc.
Where is the ACLU when you need them? Going after a money suit they can win, that's where.
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Re: ICE Lawsuits
this reminds me of the whole thing with perez hilton awhile ago,they wanted to charge him distributing child porn because someone posted a link on his blog to a site or another blog that had a picture of miley cyrus getting out of a limo where someone put a black bar over where her crotch area was,even more ridiculous,its wrong for so many reasons,first of all its not child porn,she was never exposed and even if she was the balck box was there so stll not child porn,and even if she was exposed and there was no black box and he himself posted the link to it on his blog ,he still shouldnt be able to be charged because he is only proving a link to something, its the same think as if she was sitting on a park bench spread eagle with her cootch hangin out and i said to someone "hey look over there at that slut showin her cootch"or what if there was a poster of 2 underage teenage girls haning sex ,hanging on a wall in an alley and i walk down the alley and see it,then i post in blog ,"i was walking down the alley between joes drug and dunkin donuts on main st. today and i saw a something there thats interesting ,so go there and check it out,and then i get charge with distributing child porn,its the same sort of ridiculous argument
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Guilt vs Innocence
I don't know exactly what the charges are,what evidence exists.
What I do know is that his Guilt or Innocence is being determined by a jury of bloggers with scant knowledge of the events.
If I take a superficial view of the events,I can assume that Google will also be charged with aiding and abetting by having posted links to torrent sites etc.
If you download music etc for personal evaluation as to whether you like a band or soloist and then purchase a copy from a legitimate retailer if you do like what you have listened to, then the illegal act has in fact helped promote the artist. If not liked, then it has been a waste of internet quota and hard drive space.
When it is done for commercial gain i.e. burning copies of music or movies for sale then that is UNETHICAL.
Brian has not yet been to court and found guilty or innocent.
Lets keep this blog a discussion of the pros and cons of the law and how it is enforced, what the implications are to freedom of speech and how control of the internet by governments can undermine our access to information.
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Re: Re: etc.
A. it was legally uploaded media with a freely provided link (like me embedding a clip from The Daily Show)
or
B. it was illegally uploaded in which case wouldn't it be analogous to me drawing you a map to the physical location of a fence so you could buy/receive stolen property?
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Re: Re: Re: etc.
Wikipedia surprisingly(not really) explains the law in a clear way.
The thing to remember is that the prosecution must prove intent, just being present at the scene of a crime is not the same as being instrumental to that crime, for that you need to have a) acted(inaction is also an action) b) demonstrated intent.
To him to have contributory liability he needs to act in this case he provided the links and he must have known it was infringing, if it ever comes out on emails that were seized by ICE that he made any comment saying he knew or suspected it was infringing he is screwed.
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Re: Re: Re: Re: etc.
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He certainly is at grave risk of being punished severely, but should he?
I don't think those laws are just, they are putting good people in jail for an absurd imaginary crime, for imaginary harm that no one could prove.
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To use Judge Posner's analogy, McCarthy and his channelsurfing.net website are the massage-parlor case, not the slinky-dress case.
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Re:
First of all, I just went to his site, and there are apparently non-infringing streams on there as well (they are embedded from the networks' own websites). The site was not used "only" to infringe.
Second of all, Posner was making the analogy in terms of civil infringement law. He was talking about the standards for civil contributory infringement. This should be apparent since Posner said they were only "analogies," and since Aimster was not a criminal case.
In fact, the very absence of case law that is not only analogous, points to the notion that there is no such thing as criminal aiding and abetting of copyright infringement.
That's probably why some members of Congress tried to make it so there was. They introduced something called the INDUCE Act in 2004, which would create a law against inducing copyright infringement. After massive objections, the act was shelved, and never made it into law.
Until something like that is passed, I'm guessing the "criminal aiding and abetting" charges are dead in the water. We'll find out, I suppose.
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Re: Re:
You think he has the right to embed the network feeds? I doubt it.
Second of all, Posner was making the analogy in terms of civil infringement law. He was talking about the standards for civil contributory infringement. This should be apparent since Posner said they were only "analogies," and since Aimster was not a criminal case.
I know. I didn't suggest otherwise. I just liked the quote.
In fact, the very absence of case law that is not only analogous, points to the notion that there is no such thing as criminal aiding and abetting of copyright infringement.
Aiding and abetting of any crime is a very old notion. It's being applied to a crime that perhaps it hasn't been applied to before, but that doesn't make it any less of a crime or anything strange. The point is irrelevant.
Until something like that is passed, I'm guessing the "criminal aiding and abetting" charges are dead in the water. We'll find out, I suppose.
No chance. There's no exclusion for criminal copyright infringement to 18 U.S.C. 2. It's a no-brainer.
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Re: Re: Re:
Actually, for the network feeds, he didn't embed them, he linked to them.
The stuff he embedded was from third-party OSP's. I didn't look at all of them, but after a cursory glance at one or two, it looks like all the embedded streams were, in fact, allowed to be embedded by these third-party OSP's.
The material on these third-party OSP's was uploaded by users, and may or may not be infringing. But the act of embedding was not, in and of itself, infringing.
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No chance. There's no exclusion for criminal copyright infringement to 18 U.S.C. 2. It's a no-brainer.
If it's such a "no-brainer," why was the INDUCE Act even introduced at all? Why was it even necessary? Why did it get shelved?
The "inducement" language of that act was identical to the "aiding and abetting" language in 18 USC 2. Clearly, Congress believed that inducing copyright infringement was not covered. And decided to leave it that way.
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Re: Re: Re: Re:
The "inducement" language of that act was identical to the "aiding and abetting" language in 18 USC 2. Clearly, Congress believed that inducing copyright infringement was not covered. And decided to leave it that way.
The INDUCE ACT proposed to modify Section 501, which is a section that deals only in civil infringement. Section 501 explicitly says it does not apply to Section 506: "For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a)."
Whether or not civil inducement liability is codified by the INDUCE Act is irrelevant in light of Grokster--it is the law of the land regardless. Moreover, that Act has nothing to do with criminal liability. Nice try though.
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Re: Re: Re: Re: Re:
You're misreading it. It says 506 does not apply to the rights granted in Section 106(a), "Rights of certain authors to attribution and integrity." Those are the "moral rights" granted solely to visual artists.
In other words, it says that there is no such thing as criminal infringement of "moral rights."
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The court there denied a motion to quash an indictment that included aiding and abetting criminal copyright infringement.
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Re: Re: Re: Re: Re: Re:
The Sixth Circuit affirmed the district court's conviction of the defendant for aiding and abetting criminal copyright infringement in U.S. v. Sachs, 801 F.2d 839 (6th Cir. 1986).
The Tenth Circuit upheld a conviction for aiding and abetting criminal copyright infringement in U.S. v. Blanton, 531 F.2d 442 (10th Cir. 1975).
The district court in U.S. v. Bodin, 375 F.Supp. 1265 (W.D. Okla. 1974), held that one who aids and abets criminal copyright infringement may be charged and convicted as a principal.
The district court in U.S. v. Dove, 2008 WL 3979467 (W.D.Va. 2008) denied a motion where the defendant argued that the jury instructions for his aiding and abetting criminal copyright infringement were flawed.
The Marx Brothers' conviction for aiding and abetting criminal copyright infringement was affirmed by the Ninth Circuit in Marx v. U.S., 96 F.2d 204 (9th Cir. 1938).
And there are more. Let's put this FUD about whether or not aiding and abetting criminal copyright infringement even exists to rest. It exists. And from the research I've just done, it appears that it's existed since 1909.
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Re: Re: Re: Re: Re: Re: Re:
Excellent. I found links to the cases so that everyone here can read them. Let's go through them:
U.S. v. Schmidt, 15 F.Supp. 804
A case from 1936, that references a section of copyright law (17 USC 28) that no longer exists. As an aside, that section made "aiding and abetting" a misdemeanor; today it's a felony.
However, the court does also reference 18 USC 2, the "aiding and abetting" clause.
U.S. v. Sachs, 801 F.2d 839
The charge was not "aiding and abetting" infringement, it was conspiracy to infringe. From the USAM Criminal Resource Manual, 2482, "Conspiracy to commit a crime and aiding and abetting in the commission are distinct offenses." The general conspiracy statute is in 18 USC 371, not 18 USC 2.
Conspiracy requires an even greater degree of participation than aiding and abetting. In layman's terms, it's used against people who are partners in crime. Defendants in these cases are typically charged with both conspiracy and aiding and abetting, probably so that the prosecuters can get a conviction as a principal, even if juries are uncertain about their status as a partner.
I doubt any jury would even consider a conspiracy charge in this case, since the defendant did not actively participate in the primary infringement.
U.S. v. Blanton, 531 F.2d 442
Conspiracy again.
U.S. v. Bodin, 375 F.Supp. 1265
Conspiracy again. Also relies on a part of copyright law that does not exist anymore (17 USC 104, previously dealing with aiding and abetting, is now about foreign copyrights). However, again, the court does also reference 18 USC 2.
U.S. v. Dove, 2008 (PDF)
This case is more relevant than the others, because it involves internet infringement. Here, the defendant was "a high-level member of an Internet piracy organization known as 'Elite Torrents [... who] had participated in the reproduction and distribution of pirated copyrighted movies, software programs, and video games." (Emphasis mine.)
In other words, he was a direct infringer. Accordingly, this was also a conspiracy charge - for which he was convicted.
On a separate note, this case also dealt with restitution above and beyond the criminal indictment. On a showing of actual damages, such restitution is allowed. However, the judge found that:
No restitution was given.
Marx v. U.S., 96 F.2d 204
Again, referred to copyright law that no longer exists. Again, the "criminal infringement" was a midemeanor - the Marx Brothers did not serve any jail time (they were fined $1000, and also settled the civil suit). Furthermore, this involved a case where the Marx Brothers themselves were involved in negotiations with the defendants; they were direct participants.
Notice a trend here? Either the defendants are direct consiprators, or they were charged under "aiding and abetting" statutes that were taken out of Title 17 long ago.
It's certainly conceivable that McCarthy will be found guilty under 18 USC 2. But I doubt that a jury would return a felony conviction absent a conspiracy charge. It's certainly not a "no-brainer."
So I stand by my lay opinion that the charges will be dead in the water. But we'll see.
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Re: Re: Re: Re: Re: Re: Re: Re:
Yes, let's go through them.
U.S. v. Schmidt, 15 F.Supp. 804 A case from 1936, that references a section of copyright law (17 USC 28) that no longer exists. As an aside, that section made "aiding and abetting" a misdemeanor; today it's a felony. However, the court does also reference 18 USC 2, the "aiding and abetting" clause.
Yes, it references a section of copyright law that no longer exists. The point was that aiding and abetting criminal copyright infringement was the crime, no matter what statutory designation it was given. You don't seem to understand the purpose of citing case law at times.
U.S. v. Sachs, 801 F.2d 839 The charge was not "aiding and abetting" infringement, it was conspiracy to infringe. From the USAM Criminal Resource Manual, 2482, "Conspiracy to commit a crime and aiding and abetting in the commission are distinct offenses." The general conspiracy statute is in 18 USC 371, not 18 USC 2. Conspiracy requires an even greater degree of participation than aiding and abetting. In layman's terms, it's used against people who are partners in crime. Defendants in these cases are typically charged with both conspiracy and aiding and abetting, probably so that the prosecuters can get a conviction as a principal, even if juries are uncertain about their status as a partner. I doubt any jury would even consider a conspiracy charge in this case, since the defendant did not actively participate in the primary infringement.
Total reading comprehension failure. The first sentence of the case says: "Defendant-Appellant Lee William Sachs appeals from a jury verdict finding him guilty of aiding and abetting in the infringement of copyrights . . . we affirm the convictions." Conspiracy was a separate charge, and it's irrelevant to the point I was making.
U.S. v. Blanton, 531 F.2d 442 Conspiracy again.
Total reading comprehension failure, again. He was acquitted of the conspiracy charges, but he was convicted of the aiding and abetting charges. The Tenth Circuit affirmed. Exactly as I indicated above.
U.S. v. Bodin, 375 F.Supp. 1265 Conspiracy again. Also relies on a part of copyright law that does not exist anymore (17 USC 104, previously dealing with aiding and abetting, is now about foreign copyrights). However, again, the court does also reference 18 USC 2.
Yes, conspiracy is mentioned, but I was pointing out that case for its discussion of aiding and abetting criminal copyright infringement. The court states that it is "an offense not only to infringe a copyright wilfully and for profit but as well to knowingly and wilfully aid and abet such an infringement."
U.S. v. Dove, 2008 (PDF) This case is more relevant than the others, because it involves internet infringement. Here, the defendant was "a high-level member of an Internet piracy organization known as 'Elite Torrents [... who] had participated in the reproduction and distribution of pirated copyrighted movies, software programs, and video games." (Emphasis mine.) In other words, he was a direct infringer. Accordingly, this was also a conspiracy charge - for which he was convicted.
Just because the context is the internet doesn't make it "more relevant." Aiding and abetting is aiding and abetting. The fundamentals don't change depending on the context. The reason I pointed out that case, Karl, was because the jury was given instruction on--you guessed it--aiding and abetting criminal copyright infringement. The jury found him guilty.
Marx v. U.S., 96 F.2d 204 Again, referred to copyright law that no longer exists. Again, the "criminal infringement" was a midemeanor - the Marx Brothers did not serve any jail time (they were fined $1000, and also settled the civil suit). Furthermore, this involved a case where the Marx Brothers themselves were involved in negotiations with the defendants; they were direct participants.
But, they were convicted of aiding and abetting criminal copyright infringement and the Ninth Circuit affirmed, just as I indicated.
Notice a trend here?
Yes, aiding and abetting criminal copyright infringement has been around a long time. In fact, since 1909 as I indicated. The fact that conspiracy pops up in those cases is completely irrelevant.
Either the defendants are direct consiprators, or they were charged under "aiding and abetting" statutes that were taken out of Title 17 long ago.]
No, every single one of those cases I cited had someone charged and/or convicted of aiding and abetting criminal copyright infringement. Yes, statutes change. That doesn't mean the crime of aiding and abetting criminal copyright infringement does not exist. It does. It's a combination of 17 U.S.C. 506 and 18 U.S.C. 2, just like Brian McCarthy is charged with.
It's certainly conceivable that McCarthy will be found guilty under 18 USC 2. But I doubt that a jury would return a felony conviction absent a conspiracy charge. It's certainly not a "no-brainer."
There is no conspiracy charge for the jury to look at, nor will anybody bring up the absence of such a charge because it's irrelevant. The no-brainer, Karl, is that aiding and abetting criminal copyright infringement exists.
So I stand by my lay opinion that the charges will be dead in the water. But we'll see.
Dead in the water in that the jury won't convict, or dead in the water like the aiding and abetting charge isn't even a real thing? You're wrong either way.
Let's look at the jury instruction in the Dove case. Keep in mind that this was a judge's instructions to the jury in 2008:So as recently as 2008, a jury was instructed on aiding and abetting criminal copyright infringement, and that jury came back with a resounding "guilty." 18 months for Mr. Dove. Sounds about right for Mr. McCarthy, IMO.
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If you were pointing out that "aiding and abetting" criminal copyright infringement exists, then you're right. If I said differently, I apologize.
If you're trying to say that "aiding and abetting" is applicable to this case, then I believe you're wrong.
The cases you cited all involved a much, much greater level of participation than this one. So much so, that the defendants were also charged with conspiracy.
Think about it. All this douchebag did was search for streams from other sites, and put them on his ad-supported page. He didn't host or stream anything from his own servers. He didn't sell access to, or copies of, the content. He didn't upload anything himself. He didn't encourage others to upload.
It's exactly the same thing that a TV show fan site does, when they search for YouTube clips of that show, and post them on their blog.
If he's guilty of aiding and abetting criminal infringement, then so are they, and so is half the internet.
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That's not really true. It's exactly like saying "Whether or not a murder charge is called for, is irrelevant to whether a manslaughter charge is warranted."
Either way, you have to prove that the defendant actually killed someone.
The case law that you cited shows a general guideline for when "aiding and abetting" copyright infringement is warranted. In all the cases you cited, it is warranted when, under the circumstances, the defendants' conduct is so extreme that they can also be charged with conspiracy (even if they're not found guilty of conspiracy). In order to pass the "aiding and abetting" standard, they must also pass the "conspiracy" standard (albeit presumptively).
In other words, it shows that the "aiding and abetting" standard is far higher than what is applicable in this case.
But I'm sure you won't accept this argument. Perhaps you shouldn't; I am merely a layman. So, I'll ask you this: show me even one case where a defendant was convicted of aiding and abetting, but was not even charged with conspiracy.
If you do that, maybe we can find some common ground for discussion.
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Ah, but it doesn't work that way. You cannot be convicted of manslaughter and murder for the same killing. You CAN be convicted of conspiracy and aiding and abetting for the same act. Aiding and abetting is not a "lesser included charge" of conspiracy. It's a separate crime that stands on its own.
The case law that you cited shows a general guideline for when "aiding and abetting" copyright infringement is warranted. In all the cases you cited, it is warranted when, under the circumstances, the defendants' conduct is so extreme that they can also be charged with conspiracy (even if they're not found guilty of conspiracy). In order to pass the "aiding and abetting" standard, they must also pass the "conspiracy" standard (albeit presumptively). In other words, it shows that the "aiding and abetting" standard is far higher than what is applicable in this case.
In the case law I cited, the facts just so happened to be that charges for conspiracy and aiding and abetting were warranted. That does not mean that that is always the case. It depends on the facts. It's not a matter of "extremity" as you put it. You can be charged with conspiracy but not aiding and abetting, aiding and abetting but not conspiracy, or both. They are separate crimes.
The jury instructions from the Dove case are instructive on what's necessary to find aiding and abetting:So all the prosecutor has to prove in McCarthy's case is: (1) that he knew that willful copyright infringement was being committed or was to be committed, (2) that he knowingly and willfully did some act to aid in that infringement, and (3) that he acted with the intent of causing the copyright infringement.
I don't think it's that hard to prove all three. He knew that infringement was being committed by others. He set up his whole website to aid in that infringement. And he acted with the intent to cause that infringement.
But I'm sure you won't accept this argument. Perhaps you shouldn't; I am merely a layman. So, I'll ask you this: show me even one case where a defendant was convicted of aiding and abetting, but was not even charged with conspiracy. If you do that, maybe we can find some common ground for discussion.
I know you're just a layman, Karl. That's why it strikes me as strange that you're always so sure of your interpretation of legal things even though time and again you make so many huge fundamental mistakes.
Here's an example for you, but it's not in the copyright context. The context doesn't matter, as aiding and abetting is fundamental to all criminal law. Here's a case where the defendant was convicted of aiding and abetting but not charged with conspiracy: U.S. v. Moses, 122 F. Supp. 523 (E.D.Pa. 1954). That case isn't anything special. It's just the first hit I got in the database when I looked.
One thing to keep in mind is that aiding and abetting is fundamental to criminal law. In the Dove case, Mr. Dove was NOT EVEN CHARGED with aiding and abetting, but the judge allowed the jury instruction on the charge. Why? Because it doesn't matter if you commit the crime yourself or if you only aid and abet the criminal--either way, you are guilty as if you had committed the crime yourself.
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You cannot be convicted of manslaughter and murder for the same killing. You CAN be convicted of conspiracy and aiding and abetting for the same act.
It was an analogy, and you missed the key point. Either way, you have to prove that the defendant actually killed someone. You have to at least prove that death occurred as a result of the defendant's actions.
That's the key point here. McCarthy didn't help cause the infringement itself. The principals in this case are the original users who made the videos available on other websites, and McCarthy didn't assist them in any way:
He knew that infringement was being committed by others.
General knowledge is not sufficient.
He set up his whole website to aid in that infringement.
His website did not aid in the initial infringement. He did not give the material to the primary infringers to upload. He did not assist the primary infringers in uploading the material. He did not reward the primary infringers for their infringement. He did not instruct the primary infringers on how to infringe.
In fact, if you are a primary infringer, you can't use his site to infringe. If you wanted infringing material to appear on his site, the best you could do is upload it somewhere else, and pray he noticed.
And he acted with the intent to cause that infringement.
You're saying his site existed to intentionally cause others to infringe. That's going to be a hard thing to prove, especially since it's not true.
These are the reasons I think the "aiding and abetting" charges are dead in the water.
Now, I'm just going by what I can see on the site. Perhaps, behind the scenes, he did some of these things, and I'm simply not aware of them. If so, that's a different story. But judging solely from the site's content, there's no "aiding and abetting" there.
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That's not correct. The infringers are not just the people who made the videos. The infringers are also every single person who uses the website McCarthy set up to watch infringing videos. Every transfer of a file from one person to another is actually two infringements. The person sending the file violates the distribution right, and the person receiving the file violates the reproduction right. McCarthy's website, by design, helps to cause BOTH of these infringements. That's his website's PURPOSE.
General knowledge is not sufficient.
True, but completely irrelevant. McCarthy has specific knowledge of every single file he embeds since he's the one updating his website with the latest links to the latest infringing works. His knowledge is as specific as you could ever get.
His website did not aid in the initial infringement. He did not give the material to the primary infringers to upload. He did not assist the primary infringers in uploading the material. He did not reward the primary infringers for their infringement. He did not instruct the primary infringers on how to infringe. In fact, if you are a primary infringer, you can't use his site to infringe. If you wanted infringing material to appear on his site, the best you could do is upload it somewhere else, and pray he noticed.
All completely irrelevant to the aiding and abetting charges. If he had participated in those activities, he'd be facing a conspiracy charge as well, though.
You're saying his site existed to intentionally cause others to infringe. That's going to be a hard thing to prove, especially since it's not true.
On the contrary, the intent was his own intent to help others infringe. That intent is unmistakable. You don't really think a jury is going to believe he set up that site without any intent to help others infringe, do you?
These are the reasons I think the "aiding and abetting" charges are dead in the water.
And every single reason demonstrates a lack of understanding of fundamental issues on your part.
Now, I'm just going by what I can see on the site. Perhaps, behind the scenes, he did some of these things, and I'm simply not aware of them. If so, that's a different story. But judging solely from the site's content, there's no "aiding and abetting" there.
Again, since you don't even grasp the fundamentals, your opinion is less than convincing. Let's just say that.
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Has there ever been anyone found liable for copyright infringement for only downloading something and not uploading? If not, and downloading is copyright infringement, then why not?
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The infringers are not just the people who made the videos. The infringers are also every single person who uses the website McCarthy set up to watch infringing videos.
By this standard, "The infringers are not just the people who made the videos. The infringers are also every single person who uses the website" YouTube "set up to watch infringing videos."
So by allowing users to watch infringing content, YouTube is guilty as a primary, because they aided and abetted that infringement. And so YouTube can be shut down ex parte, and their company executives arrested.
This is not just horrifying, it's legally false. Seriously, where do you get this crap?
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So by allowing users to watch infringing content, YouTube is guilty as a primary, because they aided and abetted that infringement. And so YouTube can be shut down ex parte, and their company executives arrested.
This is not just horrifying, it's legally false. Seriously, where do you get this crap?
It's not "crap," it's the law. If YouTube's actions were criminal, then yes, they could face criminal liability.
We all know you don't get the law, Karl. You don't have to keep proving that.
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you plutocratic corporatist pig
why is anyone listening to this crap
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There is no TOS plainly visible about the comment I'm submitting becoming property of techdirt, which means it's still my intellectual property as its my own work (all 45 seconds of it...)
so...ZOMG ICE ARREST THESE B*&$%#S FOR LETTING PEOPLE INFRINGING ON MEEEEE AND MY COMMENT!
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Why is ICE involved in Copyright infringement?
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The idea is that by embedding the videos, he's willfully aiding and abetting others to infringe. A person who aids and abets another person to commit a crime is guilty as if he had committed the crime himself.
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1 - a crime was comitted and/or
2 - he had reason to believe a crime was comitted
Without that how was it willfull? Perhaps a rephrase would help?
"The idea is that by embedding the videos" (that he should have reasonably believed were very likely infringing) ", he's willfully aiding and abetting others to infringe."
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free thinkers
Karl had as much to say as you, but you keep repeating yourself saying all the circumstances don't matter when in fact there is NO CASE without circumstance, oops I forget no justice..I'm sorry. That's what I see. Karl wants a debate on law you say "oh don't be biased" when of coarse you are.
So then you retort with belligerence as your closing. Besides, all I have to say is if law is the way you stated then fuck it all..its a one sided high school dance..who wants to like those? You also kept saying he "thumbed his nose" at the law but your just a smarmy slug that seems to resent how America was founded and how laws change, especially if it means changing the structure of what ever "side" your on. No one likes losing this is true, but a loser must exist.
I say the fact that paragraphs can be written to counter what ICE has ALREADY done and its not just nanny nanny boo boo crap, its thought out reasoning with examples showing logic of what this person did in creating this site has a legal right to exist. Split hairs all you want...sadly for this guy and those before him, you won't catch real people in a court room sitting in as peers.
I say this because courts disenfranchisement of honest thinking people.
1) Forcing participation by threats and the all damning JURY duty letter that in a truly thinking society have no place at all. But hell what does anyone with say care?
2) I tried the whole thing one time and to be honest I don't see the ability of cherry pick bleeding hearts out of a small crowd of letter induced compliance leads to justice.
http://www.net-monster.com/blather_juryduty.html
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I think the AC has demonstrated that this is patently untrue. If Mike, like he says, regularly admits when he's wrong, he should print a retraction. Karl, do you agree?
This is the problem with stating unequivocally that there is no other argument on these issues (e.g., the seizures ARE prior restraint, there is NO such thing as criminal copyright infringement). It's hyperbole for the sake of readership, I get it. It's just intellectually dishonest.
Karl and Mike have yet to provide any indication that they might be wrong in the face of case law that directly contradicts their position. And I doubt they'll start now.
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This is the problem with stating unequivocally that there is no other argument on these issues (e.g., the seizures ARE prior restraint, there is NO such thing as criminal copyright infringement). It's hyperbole for the sake of readership, I get it. It's just intellectually dishonest.
Karl and Mike have yet to provide any indication that they might be wrong in the face of case law that directly contradicts their position. And I doubt they'll start now.
I think Karl already agreed.
Mike's a different story. I know he's reading this. Funny how he doesn't pop in and say, "Oh, wow. You're right. There is such thing as aiding and abetting criminal copyright infringement. Thank you for looking that up."
That's not how he rolls. And I agree--it is intellectually dishonest.
The fact is, ever since the 1909 Copyright Act, wherein copyright infringement was made criminal, there has been aiding and abetting criminal copyright infringement. Why? Because if something is a crime, aiding and abetting that crime is also a crime. That's just basic to how criminal law works.
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WE CAN ALL FIGHT BACK IF WE WORK TOGETHER AND PUT A STOP TO THESE PIGS MAKING EVERY LITTLE CENT OFF US
WAKE UP we all deserve a bit more respect than this. let the poor guy go for fuck sakes. pointing fingers because the company lost some money. big fucking deal. we're all human beings. we deserve to have a little entertainment. they will still continue to sit on their elephant ass and count their billions of dollers while lower class people are trying to feed themselves and stay happy. its not even a crime what he did so PLEASE stop being such greedy bastards and show some dignity for the people. stingy fucks.
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There oughtta be a law - not
And besides, if illegal immigration doesn't pan out, the inmates of our already-overflowing prisons will be even cheaper labor for govt-connected businesses.
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Here is the complaint
http://act.demandprogress.org/sign/dhscomplaint/
The complaint, as I suspected, does not even allege that McCarthy himself uploaded anything, or helped anyone else to upload anything. He is being charged because his site is (in the complaint's words) "a 'linking' website."
If you go to Demand Progress's page, you can also sign their petition to John Morton and Janet Napolitano, asking to drop the charges. I don't know if they'll listen, but I signed it.
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I do know. They won't.
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The witch hunt, this time with "McCarthy" as its victim
Did it ever occur to you that entities such as the U.S. ICE don't have either the legal or moral authority to "seize" domain names outside of the U.S.?
The over-reach here is not only breathtaking but also is a slap on the face to non-Americans everywhere else on the Internet. Whatever the (meagre) case that can be made by the U.S. government against this poor individual -- who is guilty of nothing more nor less than linking as undertaken by Google, Yahoo, etc. on a daily basis -- the U.S. has no authority whatsoever to try to (sneakily) export its terrible, one-sided "copyright" enforcement procedures OUTSIDE its domestic jurisdiction.
In other words -- if I am (say) in Spain and I host a streaming content site that the U.S. authorities disagree with, the U.S. has NO AUTHORITY to tell people that they can't link to my site. Needless to say, both the mechanism and the "rationale" for this kind of censorship are precisely the same as are routinely used by repressive regimes all over the world, such as China, Iran, pre-revolution (Mubarak) Egypt, and so on.
But then I guess Americans are happy to be in that kind of company... aren't they?
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