DOJ: This Case Has Nothing To Do With Puerto 80; Now Here Is Why Puerto 80 Is Guilty
from the dance-doj-dance dept
Following Puerto 80's motion to dismiss the attempt by the US government to forfeit its domains, the Justice Department has filed its response (pdf) in which it more or less mocks Puerto 80's lawyers for "not understanding" what they're fighting about in court. Having read both of the documents and being familiar with the case, I will agree that there is certainly some confusion (perhaps on both sides) about the exact nature of the arguments, but it appears that the government is partly the cause of this, in that it keeps leaping back and forth between arguments, since it can't make a single coherent argument for why forfeiture makes sense under the law.Specifically, the government is claiming that its sole reason for trying to forfeit the domain (and for seizing it in the first place) is that "those domain names themselves facilitated the commission of a recognized crime." That is, it argues that Puerto 80 is wasting its time in suggesting that Puerto 80 did not engage in criminal copyright infringement, because the government has not charged Puerto 80 with anything. It's just claiming that the domains themselves are property used to commit a crime, and therefore can be forfeited.
But the government seems to want to have its cake and eat it too. That's because, in order to show that the domains were used to commit a crime, it keeps going back to actions done by Puerto 80. But then, when Puerto 80's lawyers keep explaining why Puerto 80 did not violate the law, the government tries to claim that this is meaningless because it's not accusing Puerto 80 of anything.
Talk about a disingenuous Catch-22 sort of argument.
For example, here's the kind of mocking that the DOJ presents against Puerto 80:
Despite what Puerto 80 appears to believe, the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company. Instead, and as the Complaint makes absolutely clear, the Government has brought a civil action against certain property an in rem proceeding against two domain names that facilitated the commission of criminal copyright infringement and are thus subject to forfeiture pursuant to Section 2323(a)(I) of Title 18, United States Code.But... then... in making its case, the government still relies on actions of Puerto 80 and not the domains in question. Even worse, contrary to what the DOJ states, nowhere does it make the case that criminal copyright infringement occurred. Now, as we've stated before, for criminal copyright infringement to occur, and as the government clearly states in its filing, the government needs to show:
(1) the existence-of a valid copyright; (2) an act of infringement of that copyright; (3) willfulness on the part of the infringer; and (4) either that (a) the infringement was for purposes of commercial advantage or private financial gain, or (b) the infringer reproduced or distributed, during any 180-day period, one or more copies or phonorecords of one or more copyrighted works, with a total retail value of more than $1,000.(1) and (2) aren't hard to show -- but the infringement is done by third parties (users of the site) rather than Puerto 80. In fact, the government even admits multiple times that the content is not hosted or distributed by Puerto 80, but by third parties. (3) is much, much trickier, and the government fails to show willfulness at all -- except to insist that Puerto 80 had willingness to infringe. Again, note that the government goes back to focusing on Puerto 80 here, even though it keeps insisting that it's not on trial. Even worse, it fails to respond to the pretty clear claims by Puerto 80 in its filing that its actions were clearly not willful since it had been tried and found not guilty of infringement twice in its home country. And yes, as people will point out, we're talking about US law, rather than Spanish law, but it's pretty ridiculous to think that Puerto 80 would go through such a huge legal process at home... and then somehow still think that it was willfully infringing on copyrights.
Point (4) is where an even bigger problem sets in. Once again, the DOJ focuses on Puerto 80 getting commercial gain:
With respect to private financial gain, the Complaint makes clear that when an Internet· user selected an individual link to a particular sporting event from the Rojadirecta website and the corresponding stream of the telecast began to run, advertisements that were separate and distinct from any commercials that may have been aired during the stream of the sporting event broadcast were periodically displayed at the bottom of the video during the live stream. (Compl. ~ 14c). On a motion to dismiss, this Court is required to draw all inferences from the allegations of a complaint in the light most favorable to the plaintiff. Roth, 489 F.3d at 510. It is certainly a permissible inference for this Court to draw that these advertisements generate revenue and result in private financial gain.All of that is accurate... but again, it's about Puerto 80 who (again) the DOJ insists is not being sued here. Basically, the government totally fails to properly allege criminal copyright infringement, in that it doesn't show how those four elements all take place by a single party. Instead, they pull from here and there to patch together such a claim. A user of Rojadirecta may infringe... and Rojadirecta may profit from an ad shown on the site, but that's not willful copyright infringement for the purpose of financial gain. Furthermore, as the MP3Tunes case recently showed, merely having ads near infringement is not profiting from infringement: "However the financial benefit must be attributable to the infringing activity.... While Sideload.com may be used to draw users to MP3tunes.com and drive sales of pay lockers, it has non-infringing users." Merely the fact that infringing content can "draw" users to the site doesn't mean that the profit is directly from infringement.
So, while it is true that Puerto 80's lawyers may have argued for much more than the specific issue at stake in this case, it's in part because the DOJ itself keeps shifting its argument. It can make cases for civil infringement against users. It might be able to make a case for civil inducement for Puerto 80... but what it's doing -- quite amazingly -- is mashing together both of those arguments to pretend that two separate civil issues chopped up together can adequately show criminal copyright infringement... and from that they can claim that the domains were used for such things.
If anything, it seems that Puerto 80's lawyers were too clever in arguing ahead of the DOJ, who I'm still not entirely convinced understands what it's really arguing here. Puerto 80's lawyers didn't just try to show that no full criminal copyright claim was presented by the government. It also tried to debunk the two parts of the (4) factors that the DOJ tried to pin on Puerto 80. The government then says it doesn't care what Puerto 80 did, even as it uses its own questionable claims of what Puerto 80 did to make its case. It's really quite stunning.
On a separate note, even though Puerto 80's lawyers chose not to use the First Amendment claim, the Justice Department seems to be begging for it. As we've noted in the past, the ruling in Fort Wayne Books v. Indiana makes it clear that a standard higher than probable cause needs to be used in seizures:
Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved... It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule.But here the government is arguing in the other direction saying the standard is even lower than probable cause! It's saying that it just needs "reasonable belief," now that the case has moved on to the forfeiture stage, rather than just discussing the seizure:
Nor is the Government required to show probable cause for forfeiture. See,~, Daccarett, 6 F.3d at 47. Instead, the complaint simply needs to establish a "reasonable belief' that the government will be able to meet its burden at trial. Id. "In other words, the complaint need not allege facts sufficient to show that specific property is tainted, but facts sufficient to support a reasonable belief that the government can demonstrate" the ultimate trial burden "for finding the property tainted."I'm at a loss to see how this makes any sense at all. Remember, the judge in the case has already said that Puerto 80 can't challenge the seizures on First Amendment grounds, because trampling your First Amendment rights is not a "substantial hardship." That, alone, seems like something that should be appealed. But it also seems like it wipes out any avenue for challenging the seizure on First Amendment grounds, because the standard now being discussed is merely "reasonable belief." Now, it is true that this is just for the motion to dismiss, and the standard at trial is going to be higher, but, honestly, why should a trampling of free speech have to wait so far into the process before being resolved? Plenty of other cases are willing to put the First Amendment issue upfront and center...
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Filed Under: copyright, criminal copyright infringement, doj, domain seizures, forfeiture, rojadirecta, seizures
Companies: puerto 80, rojadirecta
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Morbo says...
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Re: Doublething
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Pretty telling that the sloppy defense above was the best Pirate Mike could come up with.
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It is being appealed to the Second Circuit already.
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It isn't. Please read the laws and judgements to make yourself familiar with what is considered a substantial hardship. As Puerto 80 continues to be in business, any "hardship" is hardly substantial.
It's a whiny statement at best, and one we have already debunked here on techdirt before.
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Troubling
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Do you have to go out of business before it counts as a substantial hardship?
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Re: Troubling
im having trouble seeing the difference here.
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5th ammendment
"...nor shall any person be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
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Government property seizures
I have written my congress people regarding this, but I don't know how much good it is going to do. If enough of us write and complain of these criminal raids on our citizens maybe they'll take notice and do something about it.
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Re:
The domain was used to commit a crime, but Puerto 80 is not the criminal in question. Instead, they're simply providing the vehicle that some criminals (and many legitimate users) happen to employ in the course of their activities.
Granted, this a completely weird way to go about stopping criminals. In real-world terms, it seems roughly analogous to the following:
I ride a city bus on my way to commit murder.
Therefore, the city bus was used in the process of committing a crime.
Therefore, the government seizes the bus.
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Re: Re: Doublething
So the prereqs must be Cha 9 Wis 7 Int 13.
+4 to bluff
The NPC is able to hold two lines of paradoxical thought meant to obfuscate and alter reality in others. If used, players have to roll 13+ on a d20 or fall susceptible to thinker's expressed opinion.
If unsuccessful, all prevailing checks suffer a cumulative -2 effect.
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Please, TRY to keep up.
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Re: Re: Doublething
So that's why they hire so many former RIAA/MPAA people.
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So because it's moderately difficult to correctly identify the actual guilty parties, we'll just seize the whole thing?
And you only call that "weird"?
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Not true. This part of the case (forfeiture) is the government initiated part of the case.
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Puerto 80 can (but apparently did not) bring up first amendment issues in the actual case. But during this stage, a motion to stop the seizure only succeeds if there is "substantial hardship" created by the seizure, which is clearly not the case here.
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The whole thing reeks, but since police departments (and other government bureaus) get the proceeds of forfeiture sales it's pretty common. (it's especially common in cases related to the "War on Drugs")
-abs, posting anon since he doesn't want to set up an account
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Re: 5th ammendment
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Re: Re: 5th ammendment
Except Puerto 80 had to initiate the lawsuit. The government seemed happy to seize their property without charging them. "the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company".
"The property is not being used for "public use"."
It is so. That domain name now directs to a government page saying that the site has been seized by ICE.
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Re: Re: 5th ammendment
Except Puerto 80 had to initiate the lawsuit. The government seemed happy to seize their property without charging them. "the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company".
"The property is not being used for "public use"."
It is so. That domain name now directs to a government page saying that the site has been seized by ICE.
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Re: Government property seizures
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Re: Morbo says...
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Re: Re: 5th ammendment
sure looks like the government (the public) is using this property. Looks like public use to me.
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Re: Re: Re: 5th ammendment
My mistake - I see that the government did initiate this.
(also - Sorry for the double submission. I don't know how that happened. Mods, Feel free to delete one.)
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Nope, they're just trying to claim that two different, smaller crimes together form a totally different larger crime (even though the law itself doesn't allow for that) and that the larger crime is somehow the fault of person X even though the smaller crimes were allegedly committed by person Y and person Z.
It's like saying someone who may have robbed a convenience store with a gun, and someone else who may have beat up his girlfriend almost certainly rode in Jim's cab at some point. So this makes Jim guilty of murder.
Trying to postulate a logical defense against an attack that is largely illogical isn't all that easy. It's like trying to hold a rational conversation with a deranged psychotic.
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The new government is not limited by quaint, 18th, 19th, and 20th century notions of “due process” or “fundamental fairness”.
Instead, as demonstrated, the government asserts the power to take anything —at any time— on any pretext. What the government is doing is wrong. But no-one shall chastise them: for they are very powerful.
In their arrogance, they mind not the lessons they teach.
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Explain to me
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The Bigger Picture
In the bigger picture, it seems to me that the federal government is causing itself a huge injury in that this case is a clear demonstration that the DOJ is not interested in pursuing action based on the law. I move that the bigger picture is that the rule of law is beginning to break down in favor of special interests.
That said, you can look to one place to see the motivation for this. And this is not to say that he is directly involved in this decision, but Obama controls the DOJ. He appoints the attorney general who in turn oversees these cases and attorneys. Nor am I saying that only Obama would do this. There are plenty of Republicans that would have allowed this as well.
The really sad fact is that due to the DOJs funding source, I can see no good outcome in this case. If the DOJ wins then the US suffers via increase in state power and if the DOJ loses the US suffers via lost tax revenue - not to mention that the stupidity of the DOJ merits sanctions against the lawyers and legal fees for Puerto 80.
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Re: Explain to me
Might makes right.
“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”
——Mr Justice Brandeis
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Re: Re: Troubling
puerto 80 is based in spain
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So to be clear, they are only bringing charges against the bus, not the owner of the bus. (to delve further into silliness) Are the advertisements on the side of the bus inadmissible in court (i.e. in order to prevent self-incrimination)? Perhaps an insanity plea might work, after all I think they'd have a hard time showing that the bus is Competent to stand trial.
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Presumably this appeal to the Second Circuit is where they'll make the First Amendment argument. I'm not sure if I agree with this strategy. The issue on appeal (I think) is narrow: Is the seizure a "substantial hardship" as defined by Section 983? I don't see how it is, given that a "substantial hardship" means your kids aren't being fed (or something like that). Why they're not bring up the First Amendment in the forfeiture action is beyond me.
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Re: The Bigger Picture
Maybe you meant lost campaign contributions?
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The best time for it was when they did it.
The only other thing I could see is that they're watching the government's actions, seeing how their argument unfolds.
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Wrong again. The question of substantial hardship was not in this part of the fight, but in the previous part -- when Puerto 80 sought to get the domain name back from seizure. It was pre-forfeiture and before the gov't filed its forfeiture part.
The "substantial hardship" question was separate from this part.
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Re: Re: Re: Re: 5th ammendment
There are two separate things going on which may explain your confusion.
Puerto 80 did have to initiate the attempt to get the domain back, when it filed to have the domain returned from *seizure*.
After that, the government filed for "forfeiture" of the domain, which is what this current part of the fight is about.
So, while Puerto 80 did make the first move to get the domain back, that part of the case technically "closed" and we moved onto the second part, which the gov't initiated.
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Re: Re: Government property seizures
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Re: Re: The Bigger Picture
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Government's lawyers: "We're not saying RD did anything wrong. We just want to take their domains. We can only do this when a crime was committed. Therefore, crimes were committed and we can take their domains."
Look out Righthaven! You've got some competition for the next chutzpah prize.
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Re: Re: Re: Doublething
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Hypothetical situation, hypothetical outcome. But most of the actual raids the government has carried out make about as much sense as the above. And it makes about as much sense as the ICE seizing a domain name when they can't even prove a crime has been committed, much less by the company whose domain name they are seizing.
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Re: Re: Re: Government property seizures
Unfortunately as long as we can be kept sedated with the Jersey Shore, and the Kardashians, and all the other crap that is passed off by the networks as entertainment or news, not enough people will ever care or even know that this is happening.
In my estimation 90% of the stuff our main media networks (ABC, NBC, CBS) feed us in prime time is nothing but audio-visual pig slop, stuff that appeals to the gross, carnal nature of unsaved human beings. And it's steadily getting worse.
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Re: Re: Re: The Bigger Picture
However the failing in this, is that if not this, another case, or another. They probably are paying most of the players in this, even if no case was ongoing, (particularly the judges and agents), so the only cost MIGHT be the lawyers, if they are no salaried. Then again they probably would have the lawyers work on something else anyways so...
Win or lose, sue or give up, we the people throw money at lawyers by the proxy of the government.
Wow, I think I just depressed myself.
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This is like the government seizing your house because you know where all the local drug spots are and tell anyone who knocks on your door and asks, whether they're a cop or a crackhead.
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in Rem and Crimes
I think what the Government is trying to do is to use the literal words of the statute "in connection with a crime" to take the property. They appear to want to argue that (like the bus example above) all they need to do is show that the property was "used" "in connection with" a "crime". Thus, they point to Roja as an example but not THE only example. Their argument as to commerce seems to be that if ANYONE in the channel is making money, the element is satisfied. This of course ignores the requirements that the commercial benefit be by the “infringer”.
One hopes that the court sees the lack of logic in this argument. In some examples the argument could work (I allowed someone to use my car and they used it to smuggle drugs - I should still be permitted to recover the car if I had no knowledge or did not grant permission). Taken to an extreme, however, the argument would support the taking of any property if that property were used in the most remote connection with a crime.
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Re:
The DMCA is specifically set up to handle these types of online cases. It says as long as you respond to actual knowledge of infringement you're fine and free from liability.
The interpretation of the law that DOJ is proposing is that the DMCA doesn't matter. (They don't bring it up at all despite it being designed specifically for these cases, and forfeiture laws being clearly meant for physical goods/items.) If someone used your webpage to commit copyright violations, you're going to be held liable under this logic. That would mean the end to all user generated content on the web as there is no way for a host to ensure everything is not in violation of copyright. Based on the DOJ logic, they don't even have to prove that criminal conduct occurred, only allegations are fine. (Hell, nobody has even been charged with criminal conduct and there is no evidence that they're even persuing it at all as Puerto would have to know about any proceedings against its users as they're the only ones who could resolve anonymous user names into some real word identifiers. The first step in action against Rojadirecta users would be a supeona to Puerto to find out the identities of the applicable users.)
This entire arguement is full of deeply troubling reasoning.
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Re: in Rem and Crimes
The other issue is that the DMCA seems to be the most applicable statue for this sort of circumstance. It says that the host is not responsible for the actions of its users (given some small steps taken by the host). The DOJ says that all doesn't matter, only that a nebulous, poorly defined crime was committed.
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Frey, in an attempt to show that Puerto 80 is the direct infringer, runs through the elements of criminal copyright infringement under Section 506 of the Copyright Act:
(1) The existence of a valid copyright: Frey states that "the sports leagues hold valid copyrights to the broadcast of their respective sporting events." The court must accept this as true, and it's a reasonable inference that if Rojadirecta was streaming these sporting events, the sports leagues hold the copyrights at issue. This element is not a problem.
(2) An act of infringement of that copyright: Mike picks up on the problem here when he says, "but the infringement is done by third parties (users of the site) rather than Puerto 80. In fact, the government even admits multiple times that the content is not hosted or distributed by Puerto 80, but by third parties."
That's a huge problem for the government. Frey is immediately in trouble when he says the "Rojadirecta Domain Names clearly facilitated acts of distribution that constitute copyright infringement." Facilitated as in aided and abetted. Apparently he forgot already that he's arguing that Puerto 80 did the infringement, not facilitated it. He's already contradicting himself. I agree with Mike that the government is "leaping back and forth between arguments."
The final two elements suffer the same confusion. Since Puerto 80 can't be the principal criminal for merely linking, looking at their willfulness, private financial gain, or how much they reproduced or distributed the works is irrelevant. If he wants to show there's been a crime, he needs to be talking about the party that actually did the infringement, i.e., the principal. Instead, he's talking about the aider and abettor. It's circular logic.
The domain names are forfeitable if the government can show by a preponderance of the evidence that they facilitate the commission of criminal copyright infringement. While Puerto 80 is not on trial, it is clear that Frey thinks that Puerto 80 is the principal criminal. To be the principal criminal, Puerto 80 must commit direct infringement. The forfeiture complaint does not allege that Puerto 80 committed direct infringement. Since the government has not alleged that the domain names facilitate the commission of criminal copyright infringement, the motion to dismiss should be granted as a matter of law.
I'm sure there's holes in my reasoning. Feedback?
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The War on....
Isn't our government grand?
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