Court Dismisses Puerto 80 Rojadirecta Case (For Now)... But Doesn't Give Back The Domain

from the um,-what dept

Thu, Dec 8th 2011 10:45am — Mike Masnick

As we're still discussing the mess from the Dajaz1 censorship, in the other big case involving domain censorship, we've got another troubling situation.

Yesterday was the latest hearing in the forfeiture case involving Rojadirecta (Puerto 80), and the end result was that -- believe it or not -- the case was dismissed (pdf). The ruling doesn't say much -- basically says the reasons were stated during the oral arguments, and there's no transcript yet. However, the basics are that it was dismissed on a technicality (over a failure to plead the willfulness, which is necessary for criminal infringement), and the government has 30 days to amend and refile its complaint -- which is quite likely. While having the case dismissed sounds like a big deal, this seems more like a temporary pause, rather than anything meaningful at this point (unlike the Dajaz1 situation).

But here's the weird thing: technically, because of the dismissal, there's no forfeiture case going on, and the seizure time period has long expired. So... um... why does the government still have the domains in question? There's no ongoing case, and even if the government intends to refile, it's hard to see how it has a right to hang onto the domains in the meantime. But... it is. It seems like both Dajaz1 and Puerto 80 should be celebrating the returns of their domains today, but only one is....

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Filed Under: copyright, criminal copyright infringement, doj, domain seizures, forfeiture, rojadirecta, seizures
Companies: puerto 80, rojadirecta

42 Comments

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Ninja (profile), 8 Dec 2011 @ 11:00am

Silence
There's a lot of explaining needed here but I fear we'll be greeted with a loud silence.

If u think about it, Wikileaks has been cut out of payments with no process for over 300 days now (and Assange is locked without any charge for almost the same period even though it's not an US issue, not directly at least).

So it seems due process is facing extinction around the globe. Sad. Welcome back to Middle Ages.
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out_of_the_blue, 8 Dec 2011 @ 11:10am

Not your invented "domain censorship", but actual piracy.
"So it seems due process is facing extinction around the globe. Sad. Welcome back to Middle Ages."

Exactly, except you're being facetious, while it's actually occurring. By continuing to conflate "censorship" with the actual fact that Puerto80 was involved at least on the surface in infringement (though you take a legalistic view that wasn't), you lose all reasonable agreement. As may be your purpose: controversy drives page views, right?

Similarly, some of you fanboys seem to think that my disagreeing with Mike about his notions means that I'm for censorship. Can't unscramble your will mis-take, nor your black-and-white, you rabid ankle-biter attack-on-sight yapping, but you're not actually adding to your numbers with these tactics.
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- Chris Rhodes (profile), 8 Dec 2011 @ 11:13am
  
  Re: Not your invented "domain censorship", but actual piracy.
  So your position is that laws and due process don't need to be followed if the alleged violation is copyright infringement?
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  - Anonymous Coward, 8 Dec 2011 @ 11:14am
    
    Re: Re: Not your invented "domain censorship", but actual piracy.
    ootb does seem to be, doesn't he?
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    - Anonymous Coward, 8 Dec 2011 @ 12:40pm
      
      Re: Re: Re: Not your invented "domain censorship", but actual piracy.
      Look, ootb starts from the assumption that all other points of view are wrong. And conversely that there could never be anything logically or factually incorrect about his statements.
      
      Ergo, ootb will never truly listen, engage in a dialogue, or modify his views, even slightly.
      
      I wish folks would just stop responding to ootb's posts, it would leave more screen space for other open minds.
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  - Kevin H (profile), 8 Dec 2011 @ 11:16am
    
    Re: Re: Not your invented "domain censorship", but actual piracy.
    Chris, Chris, Chris. Your point is spot on, but alas OOTB cannot comprehend that our government fucked up. +1
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- duffmeister (profile), 8 Dec 2011 @ 11:19am
  
  Re: Not your invented "domain censorship", but actual piracy.
  I still have to wonder why due process is not being followed. Even if they are guilty, (not under the laws of the locality they operate under might I add) cases are normally thrown out if due process is violated as this invalidates court hearings. Lets look at an example in a criminal trial, if a perpetrator of a crime has his rights violated, is it not the case that they are most often released due to technicalities of failure to follow due process? I just want to see justice served and that means everyone follow the rules so that if they are convicted it was because they have been found to have violated the law and were treated within the confines of their rights. I would think anyone who wants to speak out against piracy and infringement would want the cases air tight and strictly following due process so that they can hold those cases up as clear cut examples of what happens when you break the law.
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  - JC, 8 Dec 2011 @ 11:36am
    
    Re: Re: Not your invented "domain censorship", but actual piracy.
    Problem is that sites like Rojadirecta are not violating the law, they are simply linking to others sites. They are no more liable than Google or Bing. The "linked" sites are the ones infringing copyright. The government doesn't want to go after the actual infringing sites so they go after sites pointing to them. The government knows this so they deny due process to the linking sites and prevent them from defending themselves.
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    - duffmeister (profile), 8 Dec 2011 @ 11:47am
      
      Re: Re: Re: Not your invented "domain censorship", but actual piracy.
      I was not arguing for or against their actual guilt. I believe they have done no wrong. I was trying to comment upon the refusal of so many against them of letting due process be followed. It seems simple that just allowing both sides the benefits of the process would allow an unshakable ruling to be made. The only reason to deny due process is that you have something to hide and wish to just get it over with.
      
      It is even due process to allow seizures before trial, but even those rules have been cast aside because the authorities have already decided the guilt of the accused and are seemingly just looking for a way to make their fiction a truth.
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- Anonymous Coward, 8 Dec 2011 @ 11:27am
  
  Re: Not your invented "domain censorship", but actual piracy.
  "Similarly, some of you fanboys seem to think that my disagreeing with Mike about his notions means that I'm for censorship."
  
  If you support the seizure of domain names, and those domain names have speech on them, you are for censorship. OK? Doesn't matter if they had infringing content, or even if the site's main purpose was infringement. You're shutting down speech.
  
  MLK's "I Have A Dream" speech is copyrighted. Does that mean that if I started reciting it in public, and was stopped by the police, that isn't censorship? Isn't it true that even if I was copying it word for word - or even worse, I was showing a video of it - it is still speech?
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- Jeffrey Nonken (profile), 8 Dec 2011 @ 11:30am
  
  Re: Not your invented "domain censorship", but actual piracy.
  So it's OK to throw out due process if you, personally, have a beef with Mike Masnick?
  
  Oh right, due process is a mere "legalistic view" and has no place in real life.
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- Designerfx (profile), 8 Dec 2011 @ 11:41am
  
  let's get back to the basics of the subject line - what piracy?
  what part of anything puerto 80 has done has to do with either a: software piracy or b: high seas piracy?
  
  nothing they have done falls under either category.
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- gorehound (profile), 8 Dec 2011 @ 11:47am
  
  Re: Not your invented "domain censorship", but actual piracy.
  A law is a law and we are all supposed to be innocent until proven guilty.
  I hate this Government !!!
  I got nothing else to say.
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- Chris-Mouse (profile), 8 Dec 2011 @ 11:51am
  
  Re: Not your invented "domain censorship", but actual piracy.
  By continuing to conflate "censorship" with the actual fact that Puerto80 was involved at least on the surface in infringement
  
  Except that not one, but two courts have decided that Puerto80 was not involved in copyright infringement.
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- iamtheky (profile), 8 Dec 2011 @ 11:55am
  
  Re: Not your invented "domain censorship", but actual piracy.
  Similarly, some of you fanboys seem to think that my disagreeing with Mike about his notions means that I'm for censorship.
  
  That would assume that we believe you could reach a logical conclusion, which we don't. I happen to think your disagreement is general antagonism, and mostly about drawing replies rather than being tied to a position.
  
  If not, while being king of the tards certainly garners attention, there is still the part where everybody who follows you is retarded.
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- Anonymous Coward, 8 Dec 2011 @ 12:05pm
  
  Re: Not your invented "domain censorship", but actual piracy.
  When someone says or writes "You lose all reasonable agreement," then they immediately lose all reasonable agreement themselves.
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- sumquy (profile), 8 Dec 2011 @ 12:18pm
  
  Re: Not your invented "domain censorship", but actual piracy.
  Similarly, some of you fanboys seem to think that my disagreeing with Mike about his notions means that I'm for censorship. Can't unscramble your will mis-take, nor your black-and-white, you rabid ankle-biter attack-on-sight yapping, but you're not actually adding to your numbers with these tactics.
  
  no more so than you. anyone who disagrees with you is automatically a pirate who wants nothing but to rape and pillage rightsholders, irregardless of any valid concerns we may be expressing. call the kettle black much?
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- Anonymous Coward, 8 Dec 2011 @ 12:58pm
  
  Re: Not your invented "domain censorship", but actual piracy.
  You sound almost lik TAM. The same inane rants.
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- TtfnJohn (profile), 8 Dec 2011 @ 9:39pm
  
  Re: Not your invented "domain censorship", but actual piracy.
  primafacie evidence is proof of nothing in a criminal action. If due process demands the return of the "keys" to the site they ought to be returned. Period, full stop. The law you claim to respect so much demands it. Even if you don't like it.
  
  As for your approval of censorship, that's becoming more and more apparent with each post you make. Nothing to do with your disagreements with Mike (or me or anyone else) everything to do with your statements and actions. As that or your approval of actions thousandths of an inch from tyranny can be excused by you provided it's in a cause you believe in.
  
  Should anyone be guilty of binary/black and white thinking, blue, it's you. Again convicted out of your own mouth,typing.
  
  That and, if necessary, I don't bite ankles should I attack. So far it hasn't been necessary because you're so easy to go after, same repeated argument over and over again, cut and pasted from RIAA and MPAA stats and releases, all of which have been completely debunked while you and they refuse to provide evidence for your own positions.
  
  You see the problem is this: You demand respect for copyright because it's the law. Fair enough. Decent position as far as it goes. Even moral and ehtical as far as it goes.
  Then you blow the whole thing when YOU don't respect the law when the law says that under due process an asset must be returned to an owner when the situation demands it such as this one. I understand that you don't like it but that doesn't excuse a government operating as if the divine right of kings still existed. It doesn't. That the sovereign power (government) has to obey the law as much as anyone else has been entrenched since Magna Charta doesn't seem to occur to you.
  The simple fact is that you can't have it both ways. If you want people to respect copyright by observing it, and many of us here do despite your opinion that we don't merely because we criticize it and how it's applied by some corporate entities. Then you must respect the law when it says due process requires something you don't like. It's really that simple.
  Even you should be able to understand that. Because if you don't you lose the moral and ethical high ground you claim.
  Unless you don't really care about that and care more about accusing people of being ankle-biters.
  All of which leaves the following possibilities:
  (1) You're a hypocrite
  (2) You're a liar
  (3) Your protests to the contrary you submit here by scripts provided by the MPAA or RIAA or both.
  (4) You're a shill for the entities named in (3) above [I'd demand a return of whatever it is you were paid if that's true]
  (5) you really are as totally clueless and ignorant as your posts paint you to be.
  (6) All of the above.
  A suggestion is in order no matter what. Please become familiar with how law is applied, how it functions and why it functions the way it does. This is the real world not some badly written TV show. Then become familiar with the evolution and practice of law in the English speaking world since Magna Charta (which marks the starting point in the legal system as we know it) both before and after 1776. Then become familiar with International Law as it applies to concepts like extraterritoriality and the illegality of that.
  Finally, please, please, please GROW UP.
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  - Anonymous Coward, 9 Dec 2011 @ 3:58am
    
    Re: Re: Not your invented "domain censorship", but actual piracy.
    All of the above.
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- Anonymous Coward, 9 Dec 2011 @ 3:56am
  
  Re: Not your invented "domain censorship", but actual piracy.
  you fanboys seem to think that my disagreeing with Mike about his notions means that I'm for censorship
  
  No, we fanboys think that you are a clueless asshat, unable of coherent thoughts and that you fail utterly in attacking Mike.
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Anonymous Coward, 8 Dec 2011 @ 11:29am

Considering all the negative feedback these sorts of actions get, you have to wonder why they keep happening. I mean sure there are the nice donations from certain industries but the numbers seem pretty small to sanction actions that negatively affect a politicians reputation with voters.

I can't help but speculate if there isn't some sort other motivation for those in power to keep doing this. It's like they want global communication to exist only between a select group of people. I wonder if the content industries pushing these sorts of actions are just a convenient scapegoat for the politicians?
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- Anonymous Coward, 8 Dec 2011 @ 11:40am
  
  Re:
  I think you're overestimating the public's awareness. This sort of thing rarely gets widely reported on in the media.
  [ link to this | view in chronology ]
  - Anonymous Coward, 8 Dec 2011 @ 11:53am
    
    Re: Re:
    "This sort of thing rarely gets widely reported on in the media."
    
    Which is partly why we need to abolish government imposed cableco and broadcasting monopolies. The government has no right granting communication monopoly privileges into the hands of a self interested media cartel.
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- Anonymous Coward, 8 Dec 2011 @ 11:44am
  
  Re:
  No, they're a convenient place to work once a career politician gets voted out. It's a soft pillowy landing rather than a golden parachute.
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- Anonymous Coward, 8 Dec 2011 @ 11:51am
  
  Re:
  "It's like they want global communication to exist only between a select group of people."
  
  Outside of the Internet bad laws are responsible for a lack of such global communication (from government imposed broadcasting monopolies to government imposed cableco monopolies).
  
  Of course this is their intent, laws are the cause of censorship and a lack of such communication outside the Internet already.
  
  The government has no right denying me my right to broadcast freely or to set up an independent cableco company and granting exclusive privileges to a self interested media cartel. Abolish government imposed broadcasting and cableco monopolies.
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- TtfnJohn (profile), 8 Dec 2011 @ 10:07pm
  
  Re:
  I think you're giving them far too much credit for being able to pull off a conspiracy much less enter one.
  
  For members of the US House, they're stuck with a two year electoral cycle and given how much campaigns cost these days are gonna react favourably to big donors. In other words they're for sale to the highest bidder because it's rare once elected that people in congress get turfed. (Well, rare in comparison to parliamentary systems where the shelf life of an MP is about 3.5 years.)
  
  As for the content industry, at the end of the day they depend on global communications as much as the so-called "pirates" do. If they can't get their product outside of the United States because Congress passes silly rules that have that effect then, essentially, they cede the global dominance they have now to, well, Bollywood comes screaming to mind as they turn out films and music on an enormous scale now and will only increase it should these bills pass.
  
  What I'm really saying is that neither the politicians or the content industry have the innate ability to look far enough into the future to pull off a decent conspiracy of that kind.
  
  The unintended consequences of SOPA/PROTECT IP are huge and all of them will do nothing to improve American ability to compete in the global market. A market the content industry is quite used to, takes for granted and needs. It could affect other industries as well including the slowly recovering US auto industry.
  
  In short they haven't a clue what they're doing, they're scrambling only worried about the short term and not considering the long term either for their profit or detriment. Between spreadsheet accounting and two year election cycles it just doesn't occur to them.
  
  Anyway, it's too late. The horse is out the barn, in the fields and he ain't coming back in. Attempts to curtail global communication will be resisted at all levels of society from the individual to the largest corporation outside of the entertainment industry. So will attempts to censor it. That, as much as anything is the source of this proposed bill.
  
  SOPA/PROTECT IP is so onerous and smelly that it won't take much to motivate the public and in some districts it may actually convince people to go to the polls, if for no other reason than to fire those who are in favour of it.
  
  We saw that last week. All it takes is to keep the heat on a slow boil, I expect. This bill will increase that heat to a fast boil and more as it WILL get coverage.
  
  Here we go!
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deane (profile), 8 Dec 2011 @ 12:25pm

if you wish to support SOPA/PIPA/protect IP then, you are supporting Censorship. end of story.

if you support the seizure of web domains with out due process of law you support Censorship. the reason for this is simple. anybody could and I bet Has published something they made of interest to the readership of a website. when the government seizes and takes that web domain down, they have censored that persons free speech!
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deane (profile), 8 Dec 2011 @ 12:32pm

and by "they made" I mean original work. not just a remix but something that BY LAW is copy protected. even my comments FYI is an example of that copy protected content. if the government seized this website for instance (doubt it would happen, just a hypothetical) all the comments we have made would then amount to them censoring us. think of that people. THAT IS WHY we are all up in arms here!
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deane (profile), 8 Dec 2011 @ 12:37pm

and by "they made" I mean original work. not just a remix but something that BY LAW is copy protected. even my comments FYI is an example of that copy protected content. if the government seized this website for instance (doubt it would happen, just a hypothetical) all the comments we have made would then amount to them censoring us. think of that people. THAT IS WHY we are all up in arms here!
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average_joe (profile), 8 Dec 2011 @ 12:38pm

However, the basics are that it was dismissed on a technicality (over a failure to plead the willfulness, which is necessary for criminal infringement), and the government has 30 days to amend and refile its complaint -- which is quite likely.

That's it? The only defect was failure to plead willfulness? That's disappointing. I was hoping for something more exciting.
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Delafield, 8 Dec 2011 @ 1:55pm

Willfulness
If the site was deemed legal in Spain, then it is hard to have a state of mind required for "willfulness." So, maybe the feds are going to give up. That is not something that they simply overlook in the complaint. They must have argued that they did not need to plead willfulness, otherwise they would just have amended the complaint, which they could have done.

How is the torrent-finder.com case going?
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Lord Binky, 8 Dec 2011 @ 2:22pm

The Gov. can't give back what It lost.
I'm sure the people working on it by now where just confident enough that they would never have to give it back, they just didn't keep track of the domain name or the paperwork to do anything with it.
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6, 8 Dec 2011 @ 5:24pm

Mike the lack of pleading willfulness is more than a mere technicality. If they do not plead willfulness then the case will likely be dismissed np. You have stated elsewhere iirc that Rojadirect was not willful, so unless the gov. is manufacturing some willfulness and perhaps some evidence to back up their pleadings then the case should go down quite fast. Indeed, this may be the end of it right here.
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- average_joe (profile), 8 Dec 2011 @ 5:36pm
  
  Re:
  Wouldn't the fact that they systematically ignored takedown notices and requests from rights holders to remove material suffice to show willfulness?
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  - G Thompson (profile), 8 Dec 2011 @ 9:07pm
    
    Re: Re:
    Not really since DMCA notices or the like are not a statutory requirement nor an actionable requirement for foreknowledge in Europe..
    
    Though they make good toilet paper as the Pirate Bay shows whenever they receive them.
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  - PaulT (profile), 9 Dec 2011 @ 12:07am
    
    Re: Re:
    They ignored American law, because they're not base din the US, and what they were doing is legal in Spain. They followed the laws of their own sovereign nation, not some random bully who decides they suddenly own the world.
    
    If I send you a legal notice from my Spanish lawyer, will you obey, even if what you're doing is legal in the US? Thought not.
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- Delafield, 9 Dec 2011 @ 5:57am
  
  Agreed. No willfulness here.
  I agree with this comment. Willfulness is not a technicality in this case and the government must not have felt comfortable pleading it. If it were a mere technicality, then they would have amended the complaint already to plead it. Instead, they must have argued that they did not need to plead willfulness, and they lost the argument. End of game.
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  - Delafield, 9 Dec 2011 @ 6:00am
    
    Re: Agreed. No willfulness here.
    Supposedly the site was deemed legal twice in Spain by Spanish courts. It is hard to have a state of mind of "willfulness" if a court actually told you twice that what you are doing is legal.
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    - average_joe (profile), 9 Dec 2011 @ 6:50am
      
      Re: Re: Agreed. No willfulness here.
      The court held that they were in fact facilitating infringement, but that it was legal in Spain. The DMCA notices and contacts from rights holders in the U.S. told them that what they were doing in the U.S. was illegal. Considering the fact that their domain name was property that existed in the U.S., they should have been concerned that they were using that property to violate U.S. law. And it should have no surprise to them that their U.S.-based property was seized by the U.S. government for violating U.S. law.
      
      The whole "legal in Spain" argument is silly.
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      - PaulT (profile), 9 Dec 2011 @ 7:01am
        
        Re: Re: Re: Agreed. No willfulness here.
        What did they do "in the US", exactly, considering that the servers and everything else they did were based in Spain?
        
        "The whole "legal in Spain" argument is silly."
        
        So, you're OK with China and Iran telling American companies what to do so long as they have some kind of presence in those countries?
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6, 8 Dec 2011 @ 6:25pm

"Wouldn't the fact that they systematically ignored takedown notices and requests from rights holders to remove material suffice to show willfulness?"

That depends, did they post the material themselves? If they did not then I doubt it. But I'm not a lawlyer.
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