Justice Department Practicing Mix-And-Match, Sleight-Of-Hand Law In Seizure Case

from the pay-no-attention-to-that-law-behind-the-curtain dept

Wed, Jul 20th 2011 10:54am — Mike Masnick

We've obviously been following with great interest the Federal Government's arguments for why it's allowed to seize domains under the "Operation In Our Sites" banner. The "main event" in the legality of such seizures, for now, is the fight between the Justice Department and the Spanish company Puerto 80, who runs the site Rojadirecta. As you may recall, Homeland Security's ICE division seized two Rojadirecta domain names back in January, despite the fact that the company had been declared perfectly legal in its home country. The Justice Department then did everything it could to stall any of the owners of seized sites from protesting the seizures, often threatening the site owners that if they filed a protest, then criminal charges would be filed against the sites (and, yes, in case you hadn't realized it, that means that all of the sites were seized without any charges being filed).

Homeland Security and the Justice Department are well aware that site owners are challenging the legality of the seizure of five of the domains, but so far only Puerto 80/Rojadirecta has officially gone to court to demand the return of its domains. Almost immediately after Puerto 80 petitioned the court to get its domain back, the Justice Department (as per its threats) officially filed charges against the site. Earlier this month (after stalling once again and getting the court to grant it a delay), the Justice Department finally filed its response to the petition by Puerto 80, which we thought was incredibly weak. Basically, the US Attorneys argued that stifling speech isn't considered "substantial harm" in their eyes, which is a pretty stunning interpretation of the First Amendment.

Puerto 80's lawyers wasted almost no time at all in replying to the Justice Department, and you can read their full filing below. It's absolutely worth reading because it so completely rips to shreds the government's arguments here. I want to go through a few of the key points from the filing, but wanted to call out one huge hole in the government's argument, which is briefly mentioned in Puerto 80's filing, but which appears to be a key point in the overall argument (and which has also been discussed in our comments): the government has completely failed to show any evidence of criminal copyright infringement. Since it can't do that (because it's not clear that any happened), it simply tries to conflate multiple separate parties to pretend there's criminal copyright infringement.

The argument is a little complex, so I'll try to lay it out simply:

For criminal copyright infringement to have occurred, the government has to show that copyright infringement occurred with certain key factors described in Section 506 of US copyright code. The key factors: it has to be willful, it has to be "for purposes of commercial advantage or private financial gain," it has to involve reproduction or distribution of works valued over $1,000 or it has to be on works that are "being prepared" for commercial distribution, but which haven't been released yet (basically leaks). The last factor doesn't apply to Rojadirecta as far as I can tell, because it's accused of streaming sports events that are being shown on TV, meaning that it's not leaking them before they're available.
The "willful" part is going to be difficult to show. The government claims that Puerto 80 was well aware that it was receiving complaints from copyright holders. But, as the law itself states, simply showing evidence of infringement is not sufficient to make it willful. Even worse, of course, are the two rulings in Spain that Rojadirecta was legal. Now, supporters of the seizures love to point out that this is US copyright law we're dealing with, and Spanish copyright law means nothing. That's true for the overall charges... but for proving "willfulness," it's still a big issue that puts a major dent in the US's case.
But, the much, much bigger problem for the government is in those other factors. It knows that Rojadirecta did not reproduce or distribute any works itself. It merely has users who link to such works. Thus, it's pretty clear that there's no direct infringement -- a point that the government effectively concedes in its filing against the petition. So, instead, it seems to be hanging its hat on the claim of contributory infringement. Since there is no contributory criminal copyright infringement in the law, the Justice Department is trying to claim that it still works under an aiding and abetting theory.
There are serious problems for the government in making that stick. Here's the biggest one: just what crime is the government accusing Puerto 80 of aiding and abetting? For there to be aiding and abetting there needs to be criminal copyright infringement done by someone else "aided and abetted" by Rojadirecta. So, here's the problem. Who is that "someone else" that Rojadirecta aided and abetted? The Justice Department will claim that its Rojadirecta's users. But go back up to step 1 above. It's unlikely that any of Rojadirecta's users actually meet the criteria ("for purposes of commercial advantage or private financial gain") necessary to make their use criminal. Their use may still be infringing, but not criminally infringing. Thus, there is no evidence of a crime committed by someone else that Rojadirecta could have aided and abetted. Certainly, the government doesn't show any such evidence.
Basically, the government seems to be conflating two separate parties to try to create criminal copyright infringement out of thin air. That is, it may get Rojadirecta on the first factor, but can't on the second factor. It might be able to get some users on the second factor, but can't on the first factor. So, basically, the government simply doesn't have the goods to prove criminal copyright infringement, and instead is trying to wave its hands in the air really quickly, in hopes that the court doesn't notice this. It seems to think that if it talks about the users' potential civil infringement and quickly switches to Rojadirecta making money from providing a service, it can pretend it's met the factors for criminal infringement... even though it hasn't.

In fact, as part of that hand-waving to distract the court, it seems that the Justice Department is either so incompetent or so desperate that it cited a case that didn't actually say what they claimed it said. Instead, it falsely claimed one case said something when the quote was actually from another case... whose facts were totally different:

The government does not address those arguments or the authority Puerto 80 cites, and instead makes the remarkable suggestion that Puerto 80's failure to "stop an infringing copy from being distributed worldwide constitutes substantial participation in" distribution of copyrighted material. See Opp'n at 21. That is not the law. In fact, it is not the law according to the authority to which the government attributes it�the quote, purportedly from Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991), is not found in Cubby. Rather, it comes from Religious Tech'y Ctr. v. Netcom On-Line Communication Svcs Inc., 907 F. Supp. 1361, 1374 (N.D. Cal. 1995), in which the court found that a material issue of fact existed on the question of whether an online bulletin board system operator was contributorily liable for distributing material which was hosted on its server. The government makes no attempt to explain how the facts of Netcom align with the instant facts, and, indeed, they do not. But Puerto 80 need not belabor the point, because it is irrelevant. That is because even if Puerto 80 could be held liable for contributory infringement, such liability would not support criminal charges.

Nice work, Justice Department... citing the wrong case. Whether you believe it's incompetence or deception, it looks bad either way.

On top of that, the government plays up the whole aiding and abetting claim in its response to the petition, but as Puerto 80 points out in the latest filing: the government's actual charges in its forfeiture case against Puerto 80 don't include aiding and abetting because forfeiture is not allowed for aiding and abetting:

... the domain names were not seized based on an allegation of aiding and abetting, and the government chose not to bring those charges in its forfetiyre complaint. Even if it had, those charges would not support forfeiture of the domain names because the forfeiture statute does not permit seizure based on those crimes. See 18 U.S.C. § 2323 (permitting seizure based on alleged violations of specific statutes, of which 18 U.S.C. §§ 2 and 371 are not among).

In other words... the government really seems to be trying to completely remake the law here, pretending it says all sorts of stuff it does not. And in order to do that, it basically keeps conflating different parties and switching back and forth in a sort of legalistic sleight of hand. One hopes the courts are not fooled by these rather deceitful tactics.

Now, the government has argued that most of these arguments belong in the fight over the forfeiture, rather than in this petition to return the domain, but again, Puerto 80 points out that this makes no sense, and is the whole reason why the concept of "prior restraint" is an issue. The government isn't supposed to be able to stifle speech and then say "we'll figure it all out at trial later...." Thus, Puerto 80 argues, the only proper thing to do is to return the domains, and then get on to the meat of the problems of the government's entire rationale for the seizures and forfeiture attempts.

The big question now is whether or not the courts are confused by the government's hand-waving, distractions and false citations. Or if it recognizes the underlying problems with the government's entire case. Hopefully, we'll find out soon.

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Filed Under: aiding and abetting, copyright, domain seizures, ice, infringement, justice department
Companies: puerto 80, rojadirecta

74 Comments

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Anonymous Coward, 20 Jul 2011 @ 11:10am

There are serious problems for the government in making that stick. Here's the biggest one: just what crime is the government accusing Puerto 80 of aiding and abetting? For there to be aiding and abetting there needs to be criminal copyright infringement done by someone else "aided and abetted" by Rojadirecta. So, here's the problem. Who is that "someone else" that Rojadirecta aided and abetted? The Justice Department will claim that its Rojadirecta's users. But go back up to step 1 above. It's unlikely that any of Rojadirecta's users actually meet the criteria ("for purposes of commercial advantage or private financial gain") necessary to make their use criminal. Their use may still be infringing, but not criminally infringing. Thus, there is no evidence of a crime committed by someone else that Rojadirecta could have aided and abetted. Certainly, the government doesn't show any such evidence.

The government will argue to the Court that the anonymous users infringement should be considered cumulatively as Roja acted as the floodgate to the infringing content. This is not the obstacle you think it is.
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- Anonymous Coward, 20 Jul 2011 @ 11:25am
  
  Re:
  Ban the Internet!
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- MrWilson, 20 Jul 2011 @ 11:26am
  
  Re:
  So third party liability isn't a problem? We'll need to shut down the internet if that is true.
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- Anonymous Coward, 20 Jul 2011 @ 11:35am
  
  Re:
  They are hitting one of the weakest legal defences, which is the anonymous "SODDI" defence. Allowing the other dude to do it gains you some responsiblity in the game, and the Roja people are finding out that this part of the mix.
  
  Knowingly allowing third parties to fill your site will illegal content certainly puts them in a bit of a bind. Might they be called to prove who the anonymous posters are? Might they be in a situation where without proof, it is considered to be Roja staff themselves doing the "work"?
  
  Since Roja profits from the infringement, that infringement could be considered commercial. After all, would the site have been so popular with only legal content? It's an argument that can be made and would likely stand up well in court.
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  - Anonymous Coward, 20 Jul 2011 @ 11:41am
    
    Re: Re:
    the operation of the site was considered legal in the country it was run, it has thousands of members, so trying to pin it to staff is weak at best, and you can't prove they profited from it with your lackluster reasoning, the company profits from its users, not what they do, because yes if there was a free stream of sports on the internet that was legal it would have been just as popular if not more so.
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  - HothMonster, 20 Jul 2011 @ 11:43am
    
    Re: Re:
    yeah but you cant have the site fulfill one part of the criminial copyright standard and have the users fulfill the other parts and add it all up and charge Roja with it.
    
    The users committed civil infringement. Roja profited (from the governments filing they were losing money will the amount of traffic they had but lets assume) but did not do so willfully, its legal in their country and the content is added by 3rd parties. You cant take the users willfulness and Roja's profit and charge Roja will both.
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  - Anonymous Coward, 20 Jul 2011 @ 11:46am
    
    Re: Re:
    At best, Roja is guilty of contributory infringement. It'd be hard to prove, but it's possible.
    
    However, that is a civil matter NOT a criminal one and as such the government has no legal ability to seize property as part of a civil offense between 2 other parties.
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  - Anonymous Coward, 20 Jul 2011 @ 12:45pm
    
    Re: Re:
    did you miss the part about roja not hosting any of the content? users posted links to the content.
    
    did you miss the part about the site being declared legal in its home country? the world is bigger than usa.
    
    i guess the moral of the story is to not use .COM for your site.
    
    Also, seizing the domain stops NOTHING. I am sure the community was pissed and got new domain names and spread the word. The lull in traffic was probably a blip.
    
    But, however small that blip was, I'm also sure it damaged the reputation of USA (CHAMPIONS OF FREEDOM) even further in the eyes of many Spanish and other users around the world
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  - rstr5105 (profile), 20 Jul 2011 @ 2:40pm
    
    They actually....
    Have a pretty strong legal defense under section 230 of the CDA
    
    http://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act
    
    This section pretty much lays out fairly clearly that as a SERVICE PROVIDER they are NOT liable for the actions of their END USERS. Take a gander at that wiki article and you'll understand. =)
    [ link to this | view in chronology ]
    - Anonymous Coward, 20 Jul 2011 @ 3:54pm
      
      Re: They actually....
      The CDA explicitly says that it doesn't apply to intellectual property cases or criminal cases. It doesn't apply here.
      
      Is the government's argument that the owners of Rojadirecta put the links there or that the users did?
      [ link to this | view in chronology ]
      - Karl (profile), 20 Jul 2011 @ 9:12pm
        
        Re: Re: They actually....
        The CDA explicitly says that it doesn't apply to intellectual property cases or criminal cases. It doesn't apply here.
        
        True. What does apply here is 17 USC 512, which does not exempt criminal cases. Of course, that doesn't keep ICE from believing it does:
        
        criminal violations under 18 U.S.C. ��2319 and 2320,as well as the forfeiture section contained in 18 U.S.C. �2323, are provisions Congress enacted separate from the takedown process provided for under the DMCA.
        - from John Morton's reply to questions from Rep. Zoe Lofgren
        
        In other words, a site could be in full compliance with the DMCA, and ICE would still seize it. Nice, eh?
        
        Is the government's argument that the owners of Rojadirecta put the links there or that the users did?
        
        I can only find a copy of the affidavit for other copyright sites (RapGodfathers, dajaz1, OnSmash, etc), and nowhere in that affidavit did ICE even suggest that the site owners posted links to content themselves. It certainly was not alleged in the Government's opposition memorandum, which I do have.
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- Anonymous Coward, 20 Jul 2011 @ 11:40am
  
  Re:
  yes but are the users following the links "for purposes of commercial advantage or private financial gain"? otherwise you can add all the users up and its still not criminial
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- Mike Masnick (profile), 20 Jul 2011 @ 11:53am
  
  Re:
  The government will argue to the Court that the anonymous users infringement should be considered cumulatively as Roja acted as the floodgate to the infringing content. This is not the obstacle you think it is
  
  The gov't will argue it, but it's a *really* weak argument, and one that is easily trashed by tons of caselaw on contributory infringement and third party liability. It's a huge hole in their case.
  [ link to this | view in chronology ]
  - Anonymous Coward, 21 Jul 2011 @ 5:17am
    
    Re: Re:
    Yet this has been sort of shot down by companies like YouTube who have put filters in place to remove copyright violating content, often before it goes live. Even as a third party, even as a service provider, they know that without taking that step, they would have likely been destroyed in the courts.
    
    Any site operating that gets hundreds or thousands of valid copyright notices cannot claim to be unaware of how their service is used.
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    - Anonymous Coward, 21 Jul 2011 @ 7:51am
      
      Re: Re: Re:
      But they did not recibe any valid copyright notice. Spain has no DMCA so a DCMA takedown notice has no validity. Plus a site linking to real-time streaming sites in the time any takedown notices written in spanish (is a spanish company operating in spain only communications in spanish has any validity) would arrive the link would have already been taken down due to their real time nature .
      
      No country in the world has contributory civil copyright infringement in the book of law it only exist as case law and Spain not been a common law country if it is not in the books is legal.
      
      Companies like Youtube do it not because they legally must but because the court cost of defending would be higher than the cost of putting the filters.
      
      In Spain due to the not existence of contributory civil copyright infringement the court cost of a linking site are much lower the case is usually dismiss quite early in the process.
      
      Creating a contributory civil infringement in the book of law open a can of worm that no one is willing to do.
      Thats the reason recently Spain has pass what is known as Sinde's Law (due to the culture ministry surname) creating a commission of "experts" allowing them to block preventively domain names like a spanish operation in your sites. Although recent definitive court decisions in reference to the legality of linking sites in Spain is said could open this experts to prevarication charges in the future in case of blocking that kind of sites.
      [ link to this | view in chronology ]
    - Anonymous Coward, 21 Jul 2011 @ 8:56am
      
      Re: Re: Re:
      Yet this has been sort of shot down by companies like YouTube who have put filters in place to remove copyright violating content, often before it goes live. Even as a third party, even as a service provider, they know that without taking that step, they would have likely been destroyed in the courts.
      
      I could be mistaken, but this was not done due to needing to comply with any law, but due to constant squawking or threatening from rightsholders.
      
      In addition, filters do not and cannot determine actual infringement, only a court can do so. Filters are a dire knife used to placate rightsholders at the expense of the public and any possible fair usage.
      [ link to this | view in chronology ]
John William Nelson (profile), 20 Jul 2011 @ 11:11am

The DOJ needs to hire better . . .
Seriously, I'd take a DOJ job. Who do they have writing their pleadings? Interns? (I'd say yes, but I've seen too many Assistant US Attorneys dressed down by judges, in open court, for being incompetent to believe their actualy lawyers couldn't write so badly.)
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- Anonymous Coward, 20 Jul 2011 @ 11:36am
  
  Re: The DOJ needs to hire better . . .
  Seriously, I'd take a DOJ job. Who do they have writing their pleadings? Interns? (I'd say yes, but I've seen too many Assistant US Attorneys dressed down by judges, in open court, for being incompetent to believe their actualy lawyers couldn't write so badly.)
  
  Given the gibberish you just wrote, it seems like you'd be qualified.
  [ link to this | view in chronology ]
  - Grae (profile), 20 Jul 2011 @ 1:14pm
    
    Re: Re: The DOJ needs to hire better . . .
    I don't think that word means what you think it means.
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nitpick, 20 Jul 2011 @ 11:27am

google: "slight of hand" -> Showing results for sleight of hand
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- Mike Masnick (profile), 20 Jul 2011 @ 11:51am
  
  Re:
  google: "slight of hand" -> Showing results for sleight of hand
  
  Dah. Bad typo. Fixed.
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Rich Fiscus (profile), 20 Jul 2011 @ 11:30am

And in other news, water is wet
It's hardly surprising to see these tactics. The same people who came up with the theory that the RIAA was entitled to subpoena an alleged file sharer's personal information without filing a lawsuit are now running the Justice Department.
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Anonymous Coward, 20 Jul 2011 @ 11:31am

I don't think anyone is surprised the government has no legality to its seizures, in fact pointing it out to them is apparently criminal.

can we skip all the lawyering parts and just put the entirety of the US government up against a wall and re-elect?
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- HothMonster, 20 Jul 2011 @ 11:45am
  
  Re:
  "can we skip all the lawyering parts and just put the entirety of the US government up against a wall and re-elect?"
  
  I want to put the first two batches of people that try to run afterward against the wall too, just in case
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  - Anonymous Coward, 20 Jul 2011 @ 11:51am
    
    Re: Re:
    i like the way you think hoth
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  - HothMonster, 20 Jul 2011 @ 12:02pm
    
    Re: Re:
    by run i meant "run for office"
    
    if that wasnt clear
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    - Almost Anonymous (profile), 20 Jul 2011 @ 4:08pm
      
      Re: Re: Re:
      It was clear, but your clarification made your original comment unintentionally quite funny.
      [ link to this | view in chronology ]
  - indieThing (profile), 21 Jul 2011 @ 3:04am
    
    Re: Re:
    Too damn right. I've been thinking for a while now that we should wipe our current political system and start afresh based upon the 'Jury Service' type of election. Those who want to be in power should never be allowed anywhere near the reigns of control.
    
    There would be a lottery every 2(?) years say, in which random cross segments of the population are put into government.
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Anonymous Coward, 20 Jul 2011 @ 11:55am

I think it's important to note that the government doesn't have to prove that Puerto 80 is guilty of criminal infringement. The issue is whether the two domain names owned by Puerto 80 are used to facilitate or commit criminal infringement. The government has to show this by a preponderance of the evidence, i.e., that it's more likely than not. Saying that the government didn't charge Puerto 80 with aiding and abetting is a misdirection. They didn't get charged with criminal infringement either, and that doesn't matter. All that matters is whether the domain names were used to criminally infringe.
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- Anonymous Coward, 20 Jul 2011 @ 12:07pm
  
  Re:
  I think it's important to note that the government doesn't have to prove that Puerto 80 is guilty of criminal infringement.
  
  But they do have to prove that someone is guilty of criminal infringement. As Puerto 80 is the only one they've charged, who else is it going to be?
  
  The issue is whether the two domain names owned by Puerto 80 are used to facilitate or commit criminal infringement.
  
  Yeah, sure - I can see that.
  
  "Your honor, we are prosecuting the Defendant because someone, somewhere committed a crime. Now, we can't actually prove that a crime was committed, so we'd like you to find the Defendant guilty based on our handwaving and innuendo."
  [ link to this | view in chronology ]
  - Anonymous Coward, 20 Jul 2011 @ 12:18pm
    
    Re: Re:
    But they do have to prove that someone is guilty of criminal infringement. As Puerto 80 is the only one they've charged, who else is it going to be?
    
    They don't have to prove that someone else is guilty of criminal infringement. The government need not actually charge anyone with the underlying crime, much less get a conviction. They just have to show that the domain names are probably used to commit criminal infringement.
    
    I'm not sure how tough that's going to be to show. On the one hand the servers are in Canada, and for all we know, nobody in the US other than ICE agents downloaded/streamed stuff using Rojadirecta. I believe that at least one party committing the infringement has to be in the US for it to break US laws. They don't appear to have any evidence of anyone in the US using the site except for them, and I'm not sure that counts. On the other hand, perhaps through discovery the government will get their hands on records that show lots of US users using the site. That could be enough for a jury to find that the domain names are being used to infringe. I dunno.
    [ link to this | view in chronology ]
    - Anonymous Coward, 20 Jul 2011 @ 12:24pm
      
      Re: Re: Re:
      They just have to show that the domain names are probably used to commit criminal infringement.
      
      And in order to do that, they must prove that criminal infringement actually occurred.
      
      See the problem yet?
      
      If there was no criminal infringement, then the domains couldn't have been used to commit it.
      [ link to this | view in chronology ]
      - Anonymous Coward, 20 Jul 2011 @ 12:26pm
        
        Re: Re: Re: Re:
        And in order to do that, they must prove that criminal infringement actually occurred.
        
        They just have to show that it probably occurred, not that it actually occurred. That's my understanding.
        [ link to this | view in chronology ]
        
        HothMonster, 20 Jul 2011 @ 12:34pm
        
        Re: Re: Re: Re: Re:
        true the burden shifts after the Gov shows a preponderance of evidence that criminal copyright infringement occurred but I think they are still a far ways away from showing that.
        
        preponderance of evidence is basically saying the prove it is more probable that it happened than not.
        [ link to this | view in chronology ]
    - Rich Fiscus (profile), 20 Jul 2011 @ 12:34pm
      
      Re: Re: Re:
      They just have to show that the domain names are probably used to commit criminal infringement.
      
      No, probably (a preponderance of the evidence) is the standard for civil cases. Almost certainly (beyond a reasonable doubt) is the standard for criminal prosecution.
      [ link to this | view in chronology ]
      - HothMonster, 20 Jul 2011 @ 12:39pm
        
        Re: Re: Re: Re:
        From my understanding the government can use the civil standard even though they are bringing criminal charges. They do this quite often in drug related cases I think but am not sure that this carries over to copyright charges as well. Ill pull some case law for you in a little bit.
        [ link to this | view in chronology ]
      - Anonymous Coward, 20 Jul 2011 @ 12:45pm
        
        Re: Re: Re: Re:
        No, probably (a preponderance of the evidence) is the standard for civil cases. Almost certainly (beyond a reasonable doubt) is the standard for criminal prosecution.
        
        This is a civil forfeiture action, not a criminal case. The defendant in this case is the property, i.e., the domain names. There are no criminal charges filed here.
        [ link to this | view in chronology ]
        
        The eejit (profile), 20 Jul 2011 @ 1:10pm
        
        Re: Re: Re: Re: Re:
        Then why did the DoJ file for aiding and abetting criminal copyright infringement?
        [ link to this | view in chronology ]
        
        HothMonster, 20 Jul 2011 @ 1:26pm
        
        Re: Re: Re: Re: Re: Re:
        to make good on their threats so others dont start disputing the seizures too.
        [ link to this | view in chronology ]
      - HothMonster, 20 Jul 2011 @ 1:10pm
        
        Re: Re: Re: Re:
        Basically the can bring civil charges against the property even if they lose the criminal case and even though the crime in question is a criminal act. Couple example cases and a couple people explaining it better than I can
        
        http://scholar.google.com/scholar_case?case=4130345813020416392&q=US+v.+One+US+v.+Premise s+Known+as+3639-2nd+St.,+NE,+869+F.+2d+1093+Sharp+Photocopier&hl=en&as_sdt=2,14
        
        http:// scholar.google.com/scholar_case?case=4213753520713327999&q=US+v.+One+Sharp+Photocopier&hl=en &as_sdt=2,14
        
        "There are three types of property which are subject to forfeiture; contraband, proceeds from illegal activity, and tools or instrumentalities used in the commission of a crime. Civil forfeiture actions are legal actions against the property and not against the person or violator in possession of the property. In order to start a civil forfeiture, the government need only establish probable cause that the property was used in the commission of a crime." http://www.hg.org/article.asp?id=7237
        
        "'What Is "Civil Forfeiture'?
        
        Civil forfeiture is similar in many ways to criminal forfeiture. However, while criminal forfeiture means to impose an additional penalty upon the owner of property for his wrongful conduct, a civil forfeiture action is brought against the property itself. (You will see funny case names arising from civil forfeiture cases, such as "United States v 336 Willow Street".) For criminal forfeiture to result, the owner of the property must be convicted of a crime, whereas civil forfeiture can occur even if the owner is acquitted. In some cases, the property owner won't even be charged with a crime." http://www.expertlaw.com/library/criminal/forfeiture.html
        [ link to this | view in chronology ]
  - HothMonster, 20 Jul 2011 @ 12:20pm
    
    Re: Re:
    He is just saying that the owners and operators of the site dont have to be guilty, or proven guilty for the seizures to be valid they only have to show that the site was used for such actions. Which to my understanding is true.
    
    While the government has filed suit against Puerto 80(after they tried to reverse the seizure) the seizure is against the property. But as you say Puerto is the most likely candidate for the criminal infringement because it will be hard to prove anyone else profited from the sites infringement.
    
    "Now, we can't actually prove that a crime was committed, so we'd like you to find the Defendant guilty based on our handwaving and innuendo"
    
    They do have to prove that a crime was committed because of the site but it doesn't matter who committed the crime. There is no defendant per se just Peurto 80 speaking on behalf of the property.
    
    For instance if you used my house to sell drugs regularly they could seize it. They would only have to prove the house was used for the criminal act not that either you or I was guilty of drug trafficking.
    
    The actual trial against Puerto 80 is an entirely separate thing.
    
    IANAL but based on a few hours research into seizure statutes and case law this is my understanding, albeit probably poorly worded.
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    - Anonymous Coward, 20 Jul 2011 @ 12:28pm
      
      Re: Re: Re:
      Thank you for the correction.
      
      Allow me to rephrase:
      
      "Now, we can't actually prove that a crime was committed, so we'd like you to find the seizure justified based on our handwaving and innuendo"
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      - HothMonster, 20 Jul 2011 @ 12:31pm
        
        Re: Re: Re: Re:
        oh im not saying they will be able to prove the site was used for it, which is still what they have to do. I think the point of the op was that it doesn't matter what they charge or find Puerto 80 guilty of they just have to find that the site was used for criminal infringement.
        
        I don't think they can do this.
        
        ""Now, we can't actually prove that a crime was committed, so we'd like you to find the seizure justified based on our handwaving and innuendo""
        
        I believe this is what they are currently trying.
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- jilocasin (profile), 20 Jul 2011 @ 12:11pm
  
  Then who exactly commited criminal infringement? (Re: )
  The problem with that line of reasoning is that the government still has to prove that someone used the seized domain named to commit criminal copyright infringement.
  
  The best they've got is that lots of individuals may have committed civil copyright infringement. Puerto 80 may have 'aided and abetted' said alleged civil infringement.
  
  At the end of the day it's still a case of the government abusing the law to appease private corporate interests that just happen to make sizable campaign contributions.
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  - Anonymous Coward, 20 Jul 2011 @ 12:52pm
    
    Re: Then who exactly commited criminal infringement? (Re: )
    I agree that with the evidence they have now, I doubt they can show that the domain names were probably used to criminally infringe. Perhaps once they get more evidence, like server logs and details from advertisers with links on the site, the government will have a compelling case for the jury.
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    - HothMonster, 20 Jul 2011 @ 1:21pm
      
      Re: Re: Then who exactly commited criminal infringement? (Re: )
      but here is the kicker, they may be able to prove Puerto 80 profited but will have a hell of time showing they infringed willfully. So not criminal copyright infringement.
      
      They can show that the users infringed willfully but not that they profited. So not criminal copyright infringement.
      
      No one involved meets all standards for criminal infringement.
      Based on their last filing and how they dance around this point I think they know this and don't think they will be able to make a compelling case.
      
      http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000506----000-.html
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- Steve, 20 Jul 2011 @ 12:15pm
  
  Re: a preponderance of the evidence...
  How can the government prove that the domain names were used to criminally infringe if no one is being charged with criminal infringement.
  
  Could the government seize your car because it was used in a bank robbery without the bank robbery?
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  - HothMonster, 20 Jul 2011 @ 12:25pm
    
    Re: Re: a preponderance of the evidence...
    they can seize it if someone else used your car to rob the bank even if you didnt know that it was borrowed or that a bank was robbed (not sure how you wouldnt know that but just saying)
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    - DCX2, 20 Jul 2011 @ 12:53pm
      
      Re: Re: Re: a preponderance of the evidence...
      I think Steve's point was that...how can you seize a car used in a bank robbery, if you have no evidence that a bank robbery occurred? This is the equivalent of going up to a random car and saying "this was used in a bank robbery" and seizing it.
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      - HothMonster, 20 Jul 2011 @ 1:15pm
        
        Re: Re: Re: Re: a preponderance of the evidence...
        "This is the equivalent of going up to a random car and saying "this was used in a bank robbery" and seizing it."
        
        That is a good equivalent to what the did for these domain names. With the hope that no one would dispute their claim.
        
        You and Steve are right they now have to show a preponderance of evidence that the domain name were used in a crime, but they do not have to convict or even charge anyone with said crime.
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- Gabriel Tane (profile), 20 Jul 2011 @ 12:16pm
  
  Re:
  And as was pointed out above, that's going to be very hard to prove... especially since they haven't charged anyone with criminal copyright infringement.
  
  So far, they've charged Puerto 80 of Aiding & Abetting.
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  - Anonymous Coward, 20 Jul 2011 @ 12:54pm
    
    Re: Re:
    They haven't charged Puerto 80 with anything. Not criminal infringement and not aiding and abetting.
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    - HothMonster, 20 Jul 2011 @ 1:44pm
      
      Re: Re: Re:
      They accused them of it in their last filing:
      
      "As discussed in detail below, in operating the
      Rojadirecta website, Puerto 80 has engaged in (and aided and
      abetted) flagrant criminal copyright infringement. Title 18,
      Uni ted States Code, Section 2319 sets forth certain criminal
      penalties associated with the criminal infringement of a valid
      copyright, in violation of Title 17, United States Code, Section
      506 (a) ."
      
      http://www.wired.com/images_blogs/threatlevel/2011/07/fedsseizure.pdf Page 19
      
      Mike also mentions in the last two articles about this that the government has brought suit against the owners/operators of the site but I havnt been able to find any briefs.
      
      I did find the case number 1:2011cv04139 can anyone with pacer or westlaw pull that and repost somewhere public?
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      - Anonymous Coward, 20 Jul 2011 @ 1:46pm
        
        Re: Re: Re: Re:
        Accuses, yes, but charged, no. No one from Puerto 80 has actually been charged with anything.
        
        The docket is here for free: http://ia600604.us.archive.org/28/items/gov.uscourts.nysd.380557/gov.uscourts.nysd.380557.docket.htm l
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        HothMonster, 20 Jul 2011 @ 1:58pm
        
        Re: Re: Re: Re: Re:
        yes but as Mike mentioned there is another case in which the government is charging them with something, notice my case number is different.
        
        http://dockets.justia.com/docket/new-york/nysdce/1:2011cv04139/380872/
        
        and the quote from Mike in the article above:
        "Almost immediately after Puerto 80 petitioned the court to get its domain back, the Justice Department (as per its threats) officially filed charges against the site."
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        Anonymous Coward, 20 Jul 2011 @ 2:04pm
        
        Re: Re: Re: Re: Re: Re:
        There are only two cases that I know of where the government filed charges against an individual. One is McCarthy. I'm not sure who the other one is, but I remember reading somewhere that there were only two. I believe ICE mentioned it in a letter somewhere.
        
        When Mike says "officially filed charges" he's referring to the actual forfeiture case, which was filed in June by the DOJ. There's two cases: (1) this case where Puerto 80 petitioned to get the domain names back under 983(f), and (2) the forfeiture case where the government filed an in rem action against the domain names themselves.
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        HothMonster, 20 Jul 2011 @ 2:17pm
        
        Re: Re: Re: Re: Re: Re: Re:
        oh, thank you for clarifying.
        
        I thought by seizing the property they had already effectively taken action against the domains and this new suit was more of a "challenge our accusations of you domain name, then we will fucking sue you too" kinda thing. But really its more of "challenge our seizure? ok then we will prove its validity in court."?
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        Anonymous Coward, 20 Jul 2011 @ 2:26pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        They might end up filing charges. Who knows? I doubt the owners of Puerto 80 are planning on coming here anytime soon to find out.
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        Anonymous Coward, 20 Jul 2011 @ 8:22pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        That's an interesting comment. I'd guess if the owners of Puerto 80 came to the US, they'd be paying extra baggage fees going home to cover the suitcases full of civil lawsuits they'd collect by virtue of setting foot on US soil. Do they have to personally appear or is their case simply weakened by their lack of testimony?
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        Anonymous Coward, 20 Jul 2011 @ 2:13pm
        
        Re: Re: Re: Re: Re: Re:
        This case is only for the temporary return of the domain names pending the outcome of the forfeiture action. The other case, the forfeiture action, is where the government is trying to take the domain names permanently. The issue in this case is whether Puerto 80 is suffering a substantial enough hardship that they should get the domain names back temporarily.
        
        It is really weak that the government chose to punt on the First Amendment issue. They asked the court for more time to prepare their reply because of the these First Amendment issues, and then in their brief they conclusively assert that it's not an issue. I don't think it's that clear, and I doubt the court will think so either.
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- Anonymous Coward, 20 Jul 2011 @ 1:09pm
  
  Re:
  I think it's important to note that the government doesn't have to prove that Puerto 80 is guilty of criminal infringement. The issue is whether the two domain names owned by Puerto 80 are used to facilitate or commit criminal infringement. The government has to show this by a preponderance of the evidence, i.e., that it's more likely than not. Saying that the government didn't charge Puerto 80 with aiding and abetting is a misdirection. They didn't get charged with criminal infringement either, and that doesn't matter. All that matters is whether the domain names were used to criminally infringe.
  
  If that's the standard, then Roja has no real case outside of prior restraint. And if the type of "free speech" is found to be infringing material, then it loses any First Amendment protection. If you're correct, that's a big ay caramba for Roja.
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  - HothMonster, 20 Jul 2011 @ 1:17pm
    
    Re: Re:
    the gov still has to prove that criminal copyright infringement happened on the site which they have yet to do
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  - Anonymous Coward, 20 Jul 2011 @ 1:21pm
    
    Re: Re:
    From the statute:
    (c) Burden of Proof.�
    
    In a suit or action brought under any civil forfeiture statute for the civil forfeiture of any property�
    
    (1) the burden of proof is on the Government to establish, by a preponderance of the evidence, that the property is subject to forfeiture;
    
    (2) the Government may use evidence gathered after the filing of a complaint for forfeiture to establish, by a preponderance of the evidence, that property is subject to forfeiture; and
    
    (3) if the Government�s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.
    http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00000983----000-.html
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Anonymous Coward, 20 Jul 2011 @ 12:01pm

The First Amendment/prior restraint issue is juicy. I hope the judge asks the government to fully brief out that issue in this case, instead of waiting for the forfeiture proceeding. I do think the argument that the government's actions are novel and that if it is prior restraint there's no reason to wait are persuasive. Let's get this First Amendment show on the road!
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Viln (profile), 20 Jul 2011 @ 12:08pm

Greatly looking forward to DOJ getting publicly violated over this case, resulting in a stream of similar suits and the eventual disgrace of Operation In Our Dreams. I say that because I cannot imagine the government being victorious, either morally or legally, but in my mind I know it's possible.

I hate rooting against my government, and in favor of potentially willful infringers or those who facilitate that behavior. But this is one of the crowning achievements of shame the federal government has provided us. And you thought only the Bush administration was cable of embarrassing Americans on the international stage.
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Anonymous Coward, 20 Jul 2011 @ 12:46pm

Jurisdiction
Let's not forget that this is the US govt. going after a company based in SPAIN! Where their own govt. has legally sanctioned their actions.

I think before any of these other arguments should even be necessary there should be a legal basis established other then the totally weak but its a .com/.net domain
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- Anonymous Coward, 20 Jul 2011 @ 12:57pm
  
  Re: Jurisdiction
  it is also puzzling why rojadirecta isn't getting help from its own government
  
  after all, this is the usa government bitch slapping the spanish government over its ruling declaring the site legal
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- Anonymous Coward, 20 Jul 2011 @ 3:57pm
  
  Re: Jurisdiction
  The jurisdiction is in rem jurisdiction over the property itself--the domain names. Since the domain names were located in the US, they are subject to US laws. This is according not only to US law, but to ICANN regulations as well. When Puerto 80 signed up for these domain names, they agreed that US would apply to them.
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FuzzyDuck, 20 Jul 2011 @ 1:24pm

Can't wait
So fed-up with them trying to enforce US laws outside of the US that I can't wait for the US government to go bankrupt.
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Joshy, 20 Jul 2011 @ 1:46pm

This is the "Propping a kid on the Shoulders lawsuit" Imagine a dad going to jail for holding his kid on his shoulders to see over the to view a baseball game.
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Thomas (profile), 20 Jul 2011 @ 1:54pm

The DOJ
should be renamed to something else since it's controlled by the MPAA/RIAA. I miss the times when the DOJ agencies like the FBI, CIA, etc were focused on protecting the lives of American citizens rather than the huge profits and salaries of the MPAA/RIAA executives.

Justice is easily bought by corporations these days, and ordinary citizens have no one to protect them. With even federal judges having connections to the entertainment people, there's no chance.
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Prisoner 201, 20 Jul 2011 @ 3:31pm

The founders of the Pirate Bay were convicted in Sweden of something like aiding and abetting, and like here it was aiding a crime that was never proven or even investigated.
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Shane Roach (profile), 21 Jul 2011 @ 9:53am

The court IS the government
I get tired of the pretense that our courts are somehow the last bastion of nobility in our governmental institutions. I am addressing specifically this phrase -- "In fact, as part of that hand-waving to distract the court...."

The court does not need distracting. The court has been presented time after time with every opportunity to do right by the people of this nation. I remember the issue back in the 80's with satellites. In order for that business model of spraying the globe with tv signals to be workable, there had to be laws passed against people collecting the signals that they were being bombarded with from space. No one believed the satellite companies' claims were legit, but it did not matter what the reality was. Fortunes are spent every year now for the enforcement of the ridiculous idea that people have a right to use open communication methods and expect no one to bother listening in. Think about that the next time you experience a petty crime and don't even bother contacting the police because you know they will not even try to help you.

I.P. laws necessary? Give me a break. I helped build a Wal Mart back in 1989. Where are my residuals? Do we worry that no one will ever do any work if they are not allowed to appropriately profit by it for the rest of their lives? What's good for the thinker ought to be good for the doer as well, or have we finally come to the point where we openly claim as a society that labor is a shameful way to make a living?

I.P. law is, at its heart, a violation of the very concept of freedom of speech and is nothing but a tool to re-institute slavery. All of human history is just one long, sick, and sad example after another of people attempting to use others for their benefit, and those others at first lazily accepting more and more outrageous treatment, then finally violently over-reacting instead of systematically attacking the problem at its source -- sick ideologies and the implementation of laws to support them. "Intellectual Property" is not a valuable concept. It is an oxymoron. These laws need to be done away with.

Our government, from top to bottom and side to side, is owned by powerful elites who use I.P. law to strangle the individuals most fundamental right -- to build their own lives and look after their own welfare. They protect those who need no protection by causing the rest of us to crawl in constant fear of breaking one of a million inscrutable regulations put in place to protect the greedy from the needy.

Death to all supporters of I.P. laws. They are all merely vile thieves.
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hugh williams, 24 Jul 2011 @ 3:22pm

domains
seems that the case the us government has got is very weak
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