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
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.
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
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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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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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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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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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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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They actually....
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. =)
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Re: They actually....
Is the government's argument that the owners of Rojadirecta put the links there or that the users did?
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Re: Re: They actually....
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:
- 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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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.
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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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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.
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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.
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The DOJ needs to hire better . . .
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Re: The DOJ needs to hire better . . .
Given the gibberish you just wrote, it seems like you'd be qualified.
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Re: Re: The DOJ needs to hire better . . .
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Dah. Bad typo. Fixed.
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And in other news, water is wet
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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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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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if that wasnt clear
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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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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?
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."
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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.
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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.
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They just have to show that it probably occurred, not that it actually occurred. That's my understanding.
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preponderance of evidence is basically saying the prove it is more probable that it happened than not.
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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.
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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.
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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
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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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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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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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Then who exactly commited criminal infringement? (Re: )
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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Re: Then who exactly commited criminal infringement? (Re: )
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Re: Re: Then who exactly commited criminal infringement? (Re: )
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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Re: a preponderance of the evidence...
Could the government seize your car because it was used in a bank robbery without the bank robbery?
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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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So far, they've charged Puerto 80 of Aiding & Abetting.
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"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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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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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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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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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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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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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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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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Jurisdiction
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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Re: Jurisdiction
after all, this is the usa government bitch slapping the spanish government over its ruling declaring the site legal
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Re: Jurisdiction
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Can't wait
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The DOJ
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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The court IS the government
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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domains
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