Megaupload Filings Show Massive Flaws In US Case, Ask Court To Dismiss
from the and-off-we-go dept
While we've been mostly focused on the New Zealand aspects of the Megaupload case, the company (and the individuals sued) have made two interesting filings with the district court in the US concerning the case. The first one (pdf) seeks a dismissal of the company from the case for an issue we discussed back in April: criminal law requires that the defendant be served, and you can't serve a foreign company. Thus, there is no legal way for Megaupload to be tried under criminal law:The Federal Rules of Criminal Procedure prescribe specific requirements for serving a summons on a corporate defendant in a criminal case. These requirements are neither vague nor optional – they quite explicitly require both service upon an agent of the corporation and a mailing to the corporation’s last known address within the United States. The Federal Rules do not contemplate service of a criminal summons on a wholly foreign corporation without an agent or offices in the United States. Wholly foreign corporations, therefore, may not be prosecuted for alleged violations of federal criminal law unless they waive service. In short, a corporation such as Megaupload cannot be brought within the jurisdiction of this Court for criminal proceedings absent its consent.That is, however, separate from the cases against the individuals involved in Megaupload. However, as Megaupload's lawyer is suggesting if the case is dropped against the corporate entity, it may require dismissing the orders freezing the firms' assets.
The second filing (pdf) doesn't get the same headlines, since it's not asking for complete dismissal, but in many ways it's the more interesting filing. That filing is an effort to get seized assets back in order to pay for their defense. But it also foreshadows the rather key issue in the case, which we've raised in the past about both this case and the Rojadirecta case: the US government is flat out making up a concept that inducement to infringe violates criminal copyright law.
To be clear, under the Grokster decision, the US Supreme Court made up a concept known as "inducement" as violating copyright law. Such "inducement" is not found anywhere in the copyright statute. To do so, the court relied on principles found in civil law, not criminal law. Criminal law -- for hopefully obvious reasons -- has very different standards, and "inducement" is certainly not possible under criminal copyright law as it's written today. There is, of course, the concept of "aiding and abetting" within criminal laws, but there are clear limits in which that can be used -- and the US government completely fails to show all the necessary elements for aiding and abetting (in part because it tries to mix and match the actions of Megaupload users with the defendants -- but you can't do that). That is, while users may have willfully infringed (one prong of criminal copyright infringement), the government needs to show that the defendants themselves were involved in direct willful infringement. Instead, the government assumes that if users were willful, but the defendants were not, it can simply use some sort of made up legal transitive property to pretend that they can hang the willful infringement on the defendants.
What's amazing is that all of these issues were clearly raised in the Rojadirecta case, but as has been clear from the filings in that case, the Department of Justice still doesn't understand how it's mixing and matching the law here... so it just went ahead and did the exact same thing in the Megaupload case. Perhaps it realizes that it's making up a legal concept and just hoping that judges accept such things (which judges aren't supposed to do in criminal cases, since such common law rulings by a judge can only apply to civil law), or perhaps the Justice Department attorneys really don't understand the law. It honestly feels like it may be the latter.
Federal crimes are delimited by statute. It is for Congress, not for the courts, to say (and to warn) what constitutes a crime. Dowling, 473 U.S. at 213-14 (quoting United States v. Wilberger, 5 Wheat. 76 (1820) (“It is the legislature, not the Court, which is to define a crime, and ordain its punishment”)). Courts interpreting penal statutes will exercise restraint and adopt a narrow statutory interpretation unless Congress has definitely indicated that it intended a harsher reading. Id. Because “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another,” Sony Corp. of Am. v. Universal Studios, 464 U.S. 417, 434 (1984), reh’g denied, 456 U.S. 1112 (1984), the Act cannot be read to make secondary infringement a crime.The filing also highlights, repeatedly, that the indictment fails to actually establish the basic facts necessary to bring the charges that are being brought:
These omissions are not small, they are not subtle, they are not few, and they are not inconsequential. The Government has attempted to make out an all-encompassing case of an alleged criminal copyright conspiracy without bothering to allege concrete specifics of the actual infringement allegedly committed. It has attempted to build one of “the largest criminal copyright cases ever brought by the United States” out of conclusory ipse dixit, reciting statutory verbiage and nothing more. Certainly Counts Four through Eight do not reflect facts supplying requisite probable cause.Separately, the filing points out that the government's claims presume that every dollar earned by Megaupload was earned because of criminal activity. That, of course, is ridiculous for a number of reasons, not the least of which is that we know that there were a significant number of legitimate users and uses of Megaupload. Furthermore, the filing correctly points out that you can only use US copyright law against infringing acts that occurred inside the US, and yet the government assumes that every act of infringement is subject to US copyright law -- which is simply false -- and has resulted in much more straightforward cases being dismissed.
The Government seeks forfeiture of all of Defendants’ revenue because it has assumed all of the revenue is tainted by crime. But there is no probable cause to support that assumption, which by no means follows from—and is, indeed, at odds with—acknowledged aspects of Megaupload’s business that stand well removed from the alleged infringement. To put matters in perspective, consider the maximum statutory fine that might be imposed upon Megaupload and the individual Defendants were they convicted on all five criminal counts, Counts Four through Eight, concerning the alleged copyright infringement: The maximum fine per count for a first offense of criminal copyright infringement under 21 U.S.C. § 506(a) would be $250,000 for the individual and $500,000 for the corporation, see 18 U.S.C. §§ 2319(b), 3571(b)(3), 3571(c)(3), such that imposing the fine upon these Defendants consecutively across all five counts would result in a combined fine of $7,500,000.00. Yet tens of millions of dollars, more than ten times the amount of that maximum fine, have been seized from these Defendants as derived from the business. The math does not compute.The filing also points out that Megaupload has substantial non-infringing uses, effectively using the Betamax ruling as a defense. I'm not sure this actually applies in the criminal context, but does raise some reasonable questions about whether or not you could even make a legitimate civil case against Megaupload.
Finally, the filing notes the basic First Amendment questions raised by the seizure itself, citing the Fort Wayne Books case:
The Government’s shuttering of Megaupload, purely on its own ipse dixit, is a modernday throwback to the unconstitutional prior restraints on speech that are a notorious enemy of the First Amendment. In Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), for instance, the State of Indiana filed a civil action against several owners of adult bookstores alleging RICO violations and, based on an ex parte showing of probable cause, seized “the real estate, publications, and other personal property comprising each of the three bookstores operated by the corporate defendants.” Id. at 51. Even assuming that the seized materials were obscene, and thus unprotected, the Court held that “our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.” Id. at 66; see United States v. Jenkins, 974 F.2d 32, 35 (5th Cir. 1992) (“It is, of course, well-settled that the government may not seize presumptively protected expressive materials without a prior judicial determination of obscenity”). The bottom line is that the Government cannot order seizure of “literally thousands of books and films [to be] carried away and taken out of circulation by [a] pretrial order” until “the claimed justification for seizing books or other publications is properly established in an adversary proceeding.” Fort Wayne Books, 489 U.S. at 67; see, e.g., Multi-Media Distributing Co., Inc. v. United States, 836 F. Supp. 606, 614 (N.D. Ind. 1993)...I'm sure we'll see these arguments show up again in a motion to dismiss, but for now, they're just being raised in an effort to get access to some of the seized funds. Either way, the further this case moves forward, the worse it looks for the feds case, which increasingly looks insanely weak (and highlights just how ridiculously over-aggressive the US government has been in pursuing the case).
Here, the Government has effectively accomplished what Fort Wayne Books foreclosed. It has shuttered Megaupload, and, with it, a treasure trove of books, films, videos, photos, digital expression of every stripe, without any adversarial proceeding at all. What is more, if the Government had its way, 1,100-servers worth of that collection would have been wiped, with members of the public (including rightful owners of that material) left the poorer for it. In this sense, what the Government has done in this case raises further alarms, for it has seized not only allegedly infringing copies, but effectively taken down everything that was on Megaupload.com, taking works out of circulation entirely. See Heller v. New York, 413 U.S. 483, 492 (1973) (explaining that “a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause” but it is when a book or film is “taken out of circulation completely” that the seizure rises to the level of a prior restraint). The parallels between this case and cases in which prior restraints have been denounced as unconstitutional are unsettling and, if nothing else, warrant heightened judicial skepticism and scrutiny
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Filed Under: criminal procedure, doj, first amendment, forfeiture, seizure
Companies: megaupload
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Well know
I hope Megaupload sues the DOJ (et al) for as much as they can get.
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Re: Well now
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Re: Well know
Probably the same as Veoh managed to get after they were forced into bankruptcy by these types of proceedings, I'll guess.
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Re: Re: Well know
i have a feeling we're going to see that old arrogant hacker who reset the german chancellors credit rating for teh lulz, with millions of dollars, millions of fans, and...and we're going to see him go to War. it seems obvious the feds thought that judges would just roll over and let them make shit up, instead they handed him everything neccesary to countersue everyone and every agency involved, personally and en masse. the butthurt will be endless, i hope he rapes them so hard their grand childrin getting t-bagged in COD feel it.
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Re: Well know
I expect this case to keep rolling for a while, the US corrupt Govt won't let it go that easily. But these lawyers are awesome anyways.
Also, I do hope Kim can rebuild his business. It would be one epic fail for the US, not to mention a huge embarrassment.
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The Lawyers in this case
But that is actually not the most surprising thing. Their firm also represents major content owners (i.e., Hollywood). Although not a legal conflict (as the Government argues), the firm risks loosing many clients because Hollywood is angry and vindictive. Look at the lobbying firms that represented the tech industry against SOPA - those lobbying firms were abandoned by their Hollywood clients. Hollywood is at war, and you are either with them or against them. Hollywood will not hesitate to pull their work from the firm representing Megaupload and send it to another firm. I'm sure not all the attorneys at that firm are happy about this decision to represent Megaupload, it means that some of those attorneys will be loosing their clients.
We already know from the court filings in this case that any firm that dared to represent Megaupload got a call from the government and/or Hollywood "reminding" them that they also represented Hollywood. Some firms caved and withdrew from representation because they understood the warning - Hollywood would find other attorneys.
It all goes to the Government's overall strategy: prevent Megaupload et al. from adequately representing themselves; cut off money, pressure the lawyers, eliminate exculpatory evidence.
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Re: The Lawyers in this case
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Re: The Lawyers in this case
And JayTee has a point. If you are so damn mighty you kicked the US Govt in the nuts I want you as my lawyer. Name your price.
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Re: Re: Well know
We are turning into a Police State Orwellian Nation and no big Media is taking the time to write about this disgusting CASE !!!
Where are the Respected Reporters ? Where are the Respected Newspapers ?
Fuck This Government and Fuck SCOTUS Too !
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Criminal jurisdiction and Megaupload civil suits
To demonstrate this, at the time the US brought down Megaupload, Megaupload had a civil suit pending against Universal (for the Megaupload song). But appearing in that civil suit in the US was not enough to bring Megaupload into the US jurisdiction in the criminal sense.
If Megaupload wins for lack of jurisdiction, this case will be used as an "example" as to why we need SOPA and PIPA to stop foreign "rogue" sites. One response may be to reduce the service/notice requirement in the criminal context to be the same as the civil context. But forget that, we need the SOPA and PIPA firewall to break the internet!!
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Re: Criminal jurisdiction and Megaupload civil suits
Interesting that the raid was planned for the days after these laws were slated to go into effect.
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Re: Well know
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Second link is incorrect
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Re: Second link is incorrect
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Didn't the entertainment industry already get what it wanted?
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Re: Didn't the entertainment industry already get what it wanted?
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Re: Re: Didn't the entertainment industry already get what it wanted?
I believe that too. We have the technology...
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Re: Re: Re: Didn't the entertainment industry already get what it wanted?
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Re: Re: Re: Re: Didn't the entertainment industry already get what it wanted?
...all hail the robot prophets, Daft Punk!
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Re: Didn't the entertainment industry already get what it wanted?
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Re: Didn't the entertainment industry already get what it wanted?
Consider that all the other file lockers pretty much rendered themselves useless after what happened to Mega. Well, if it becomes public that the US totally FUBAR'd the case against Mega, the other file lockers might come back online.
And Mega would have a lot of freedom once they were ruled legal. This could set some amazing precedents that could really change the game.
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Re: Didn't the entertainment industry already get what it wanted?
I think your wrong about that, assuming megaupload can get their site more or less to the point they were left off, i predict we'll see a flog of going there, pretty sure the majority of people who used it will go back, just as a big fuck you to the establishment and with this big ass advertisement compliments of the us government, i think new users will be visiting just to see what all this was about, and ofcourse those who also feel that megaupload offers a great service
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Re: Re: Didn't the entertainment industry already get what it wanted?
Once his asset's are back in his hands it will stay back as everyone will be happy to make sure it survives as a point of principle :)
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- That was wonderful!
- Bravo!
- I loved that!
- Ah, that was great!
- Well, it was pretty good.
- Well, it wasn't bad...
- Uh, there were parts of it that weren't very good though.
- It could have been a lot better.
- I didn't really like it.
- It was pretty terrible.
- It was bad.
- It was awful!
- It was terrible!
- Take 'em away!
- Bah, boo!
- Boo!
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(For those who haven't seen it.)
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I fucking love the critics!
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The United Police States of America Inc. is never wrong, because they have all the bombs and they torture and kill at will.
Herr Commandant Obummer says so und der US media parrots the propoganda!
And the United Police States of America Inc. only kill "enemy combatants" (made-up term which means "anyone they feel like"), never innocent people.
Herr Commandant Obummer says so und der US media parrots the propoganda!
And they only kill to preserve american Freedumb (the freedom to do what the United Police States of America Inc's Corporations tell them to do).
Herr Commandant Obummer says so und der US media parrots the propoganda!
USA Über Alles!
USA Über Alles!
USA Über Alles!
Fucking brain-dead morons.
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Re:
It's like the Onion but for real life.
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and your whole compare to Nazi's thing, makes you the moron
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Although, yes, Godwinned the everloving hell out of this.
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The term may have existed for a long time - but the meaning given to it by the US in recent years is most definitely "made up".
Prior to 2008 it simply had the obvious meaning of any person actively engaged on the opposing side in a conflict. The US used the term after 2001 to mean an unlawful combatant who could therefore (in the recent US government tradition of making stuff up whenever it suited them) be simultaneously denied the protections of the Geneva convention, the civil law of the country in which they were detained AND of US civil law.
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Mike, with all due respect to your knowledge and views on technology policy (which are both broad and deep), this is total bullshit. I can't believe you'd knowingly assert something so easy to confirm as untrue, so I'm going to assume that you're just overlooking this or perhaps misunderstanding something else in your zealous interest in this case. (I get that. It happens.)
"Inducement" has been around in the criminal law a lot longer than the civil "inducement" theory in Grokster. If you look at Section 2 of the Title 18 (the title where they keep most of the federal crimes in the US Code), it defines a class of people who can be held responsible for crimes as "principals". We usually hear this referred to as "aiding and abetting," but it's more than that. Since there's no longer a "Section 1," these are the first words appearing in Title 18:
"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
The government is not "making this up." Even if you don't like the Grokster standard, or think the Supremes inappropriately expanded existing law by coming up with the inducement standard, the criminal law has covered "inducement" for a long, long time.
Maybe you don't think the government can show that Mega's management was "willful" or actually intended for criminal infringement to occur. That's certainly what you seem to suggest in this sentence:
"Instead, the government assumes that if users were willful, but the defendants were not, it can simply use some sort of made up legal transitive property to pretend that they can hang the willful infringement on the defendants."
The government sure doesn't look like it's assuming that Mega's management can be guilty of criminal copyright infringement just because their users were willful, even if the defendants weren't. Perhaps you're suggesting that the government lacks evidence to show the Mega team was willful. If so, maybe you're right. I don't know. But the case isn't at the point where the government would have to show that, so the fact that we haven't seen enough evidence at this point doesn't really tell us much one way or the other.
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Re:
Mike doesn't like to be so clearly wrong.
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Re:
AC: "Inducement" has been around in the criminal law a lot longer than the civil "inducement" theory in Grokster.
Just in case you aren't capable of seeing the difference, I italicized the word of interest. Next time try not to make a straw man; Mike's point was "search the copyright statutes and you see no mention of inducement anywhere".
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Re: Re:
Even if we want to pretend that Mike intended to argue that "criminal copyright law" doesn't permit an inducement theory, even if criminal law does, that doesn't really change my criticism (or make it a "straw man"). If that was Mike's point, then, well, so what? The defendants here are charged (in the same count) with violating both section 2319 (the specific copyright crime) and section 2 (the part that mentions inducement). So even if inducement weren't part of "criminal copyright law" (whatever one means by that), it's still part of the law the Mega team were charged with.
I think the point that Mike might be reaching for, but perhaps hasn't quite gotten there because he's fresh off reading the Mega lawyers' brief and is quite taken with it, is that "inducement" in the criminal law might not mean exactly the same thing as it does in the Grokster opinion and in civil copyright cases. I, for one, think that's probably right. If the government starts arguing that the court ought to apply the Grokster test to decide if the Mega team is guilty, then that would be a good time to complain. But right now, the Mega team's lawyers are complaining that the government's theory sounds a lot like the Grokster "inducement" theory, and everybody knows that "inducement" is only relevant to civil copyright cases, not criminal ones.
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Re: Re: Re:
(I "ellipsised out" the ad hom attack, just to keep things civil)
I think it's pretty obvious that this is exactly what Mike said. The part you're referring to is known far and wide as the "aiding and abetting" statute. It has some very clearly delimited rules about who can and cannot be charged with it, and it is completely different from the Grokster "inducement" standard in civil cases.
And, generally speaking, criminal "inducement" does not apply to copyright cases. How do we know? Because in 2004, Congress considered adding it to the copyright statutes. The bill was called the Induce Act, and it was defeated.
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Re:
To "induce" a crime, you must "incentivize" it. That is because to "induce" a crime requires a showing of "persuasion".
There was no persuasion by Megaupload - so no crime.
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Substantial non-infringing use as a defense in criminal case
My take is that if secondary liability applies in the criminal context (the government's argument), then defenses to secondary liability would also apply. Substantial non-infringing use is a defense to secondary liability. The filing, for most of it, assumed that the government's arguments were legally and factually correct, for the sake of argument, showing that even then Megaupload should have some of its assets returned.
So, yes, those defenses may not apply in the criminal context, but then secondary liability would also not apply.
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You ho Mateys away, there'll be treasure and adventure today. He ho here we go together as a team. (Yes, I watch too many kids shows)
"Always defending your pirate buddies." But cmon pirates are just so freakin cool with the swashbuckling, swords, cannons and such.
C'mon I know there's an arrrrghhhh in there somewhere.
You're just a horrible person. (Why dont you just call him out in the school yard after school?)
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First off, how do you know this? The only things I have seen have been that 90% of users were downloaders only (never uploaded anything). We also have no breakdown of the number of users who purchased a "download pass" to access their own (legal) data. Where are you getting this information from?
Kimdotcom is not a reliable source, you know. The accused will say anything to escape prosecution, and he is already be prosecuted in the past for lying to authorities.
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Re:
I am personally one of those non-infringing users. And so are the other people that play games with me.
When I was doing independent software development for a stint, I also used Mediafire to upload my releases. I liked Mediafire's interface better than Mega, personally, but it's all the same thing; file lockers have substantial non-infringing uses, and just because *you* don't use them that way doesn't mean that no one does.
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Re: Re:
Bananasaurus Rex, one of the very best Portal 2 players in the world (if not the best), compiled a set of scripts that allowed you to change the color of any entity in the game. This is really cool, I wanted to make purple turrets for my fiancee as a surprise.
Unfortunately...he uploaded his scripts to Megaupload. So now I do not have access to this perfectly 100% non-infringing material. And it is not available anywhere else. I have even contacted Rex but he never replied.
http://forums.steampowered.com/forums/showpost.php?p=23754259&postcount=33
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Re:
many, many, many android roms and their supporting files were hosted on megaupload. If you were a user of the xda forums you've probably downloaded something from megaupload.
Myself and many many others would get the latest roms and tools from megaupload, and it was great as the developers didn't have to pay for all the bandwidth to host these great community tools.
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Re: Re:
A ton of great ROMs and tools that are no longer being updated were essentially lost due to this. Which sucks for the community and to say the XDA community is not a significant number of people/non-infringing use is to show complete and total ignorance. (Not aiming that at you, but at the trolls who will, and already have, shown up.)
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Re:
"First off, how do you know this? The only things I have seen have been that 90% of users were downloaders only (never uploaded anything). We also have no breakdown of the number of users who purchased a "download pass" to access their own (legal) data. Where are you getting this information from?"
Kimdotcom is not a reliable source, you know. The accused will say anything to escape prosecution, and he is already be prosecuted in the past for lying to authorities."
First off, why are you focusing on users downloading, when its clear whats being talked about is users uploading?
Copyright material, the whole point this whole thing started
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Re:
Also you point out that 90% of users were downloaders only, What's your point? Just because I downloaded a file from Megaupload without uploading a file does NOT mean it was illegal. You ever heard of open source? A lot of Android roms were hosted there, as were many other types of original content that was free.
Yes we know Kim is not a reliable source but we also know Hollywood is also not reliable. This whole case stinks and no one is willing to step up and show any real evidence. Instead we have seen plenty of evidence lost or misplaced. We have also seen the government trying to destroy all the evidence on the servers. This is not acceptable.
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Re: Re:
I uploaded pictures I took by myself to Megaupload and made available to many folks, for free, to download. I also used Megaupload (and other sites) to store pictures and written documentation (I wrote myself.) These were also placed on Google Docs, but I put them on Megaupload because Google Docs is notorious for "problems" when it comes to sharing documents with people who don't have accounts or who are coming in from foreign sites. Since I was sharing with people all over the world, Megaupload (and the other file lockers) were places where I could put stuff that would be available to anyone.
Before I started using it myself, I was made aware of it through XDA and android mods (Cyanogenmod and Revolver) and various open source game companies who would use it to share their stuff.
Anyone who says there wasn't legitimate reasons to use Megaupload is going to have to prove the negative.
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Re: legitimate users
http://torrentfreak.com/kim-dotcom-us-military-had-15634-megaupload-accounts-120326/
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Re: Re: legitimate users
No, I am not claiming anything like that. Mike is claiming (and I quote) "a significant number of legitimate users". Do you consider 15,000 out of 50 million (or the KdC puffed up 150 million) users to be significant?
Also, would you accept the concept that those accounts are likely not government officials, but rather soldiers in the field trading files and what not with loved ones at home? Are you suggesting that these are 15,000 official use accounts?
Are you that dense?
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Re: Re: Re: legitimate users
What I want to know is on what kind of logic can claim that Megaupload as a service is illegal, yet UPS or FedEx are not illegal.
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Re: Re: Re: legitimate users
I would say it doesn't matter at all.
I think the standard put forth in Betamax case should apply here myself:
The Betamax case was about copying broadcast TV. This case involves tons of protected speech like personal writings, code, music & video and should be held to at least this standard, if not higher.
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Re: Re: Re: legitimate users
Have YOU ever recorded anything on the VCR that you shouldn't have? I would say there's a better than 50% chance that you did.
Face the facts, AC. It doesn't matter how many people use Mega for piracy. Mega and other file lockers have substantial non-infringing uses, just like the VCR. There are multiple examples given in the replies to your own post. You and the US Government do not get to decide what I and others may use Megaupload for.
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Re:
From the significant number of people who were using it to legally distribute materials who loudly complained when they were harmed.
I don't know why this "most people only downloaded" business keeps being brought up. It's totally without meaning. If absolutely 100% of everything on MU was legal, you'd still find the overwhelming majority of users were download-only.
This is also completely meaningless. It is up to the accusers to prove their case, and as of yet they haven't even produced compelling evidence, let alone anything like proof.
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Despite your idiot attempts to distort the truth, they were still users and still had legitimate uses for the service, even if it was just to store their own files to be accessed in emergencies that never arose.
So, by your own words, at least 90% of users were using it legitimately.
"We also have no breakdown of the number of users who purchased a "download pass" to access their own (legal) data."
If only your superiors would allow the data to be released instead of hiding the data away from Megauploads lawyers...
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Anyway, let's face it, you are making the stupid assumtpion that anybody who downloaded anything from Megaupload without uploading anything must be a pirate. That's an assumption as foolish as you are...
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Second one is a must-read
An example. I've argued pretty consistently that the First Amendment makes it unlawful to take protected speech out of circulation when removing unprotected speech. This is pretty clear from numerous cases: Fort Wayne Books, Ashcroft v. ACLU, CDT v. Pappert, and so on.
The usual trope from the legal trolls is "well, those are obscenity or child pornography, not copyright infringement." They do not ever cite any copyright case that says that taking non-infringing speech out of circulation is perfectly OK, of course. The thing is, I don't have access to PACER, so I haven't been able to look up the majority of copyright cases.
Well, it turns out (unsurprisingly) that it's not acceptable in copyright cases, either. And this filing cites a number of cases that make this clear: Silverstein v. Penguin Putnam, Abend v. MCA, Bouchat v. Baltimore Ravens, Phelps LLC v. Galloway, New Era v. Henry Holt. I haven't actually hunted down these cases yet; I guess I've got a lot of reading to do.
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Re: Second one is a must-read
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Re: Re: Second one is a must-read
It's less a matter of reading the cases, so much as it is finding them in the first place. PACER has a ton of search options that Scholar doesn't. Or so I'm told.
Plus, a lot of things just aren't up on Scholar yet (mainly lower court cases).
I'm not knocking Google Scholar, of course; I think it's brilliant. It's just not the same thing, really.
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Re: Second one is a must-read
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Re: Re: Second one is a must-read
Depends on the type of speech that loses protection. Obviously it would be different for child pornography vs. libel or slander, for example.
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Re: Second one is a must-read
Also, if Megaupload et al. lose the motions in Virginia (at least the motion to release money), then this is great evidence that they do not have a chance of a fair trial in the USA. Such evidence can be used in the extradition hearings in August in New Zealand. So, if they don't get the money, they can argue they can't be extradited because they won't get a fair trial. If they get their money, then they will have won the motion in the USA (and maybe even Megaupload could be reborn). Wouldn't that be great if Mega is reborn in such short order, way before anyone would have guessed?!?!?!?
Again, it is so clear that the US Government's strategy has been to prevent Megaupload et al. from adequately representing themselves. It is sickening, really.
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Re: Re: Second one is a must-read
That's the key point that the US Government (especially the DoJ) are missing. They're prectiucally guaranteeing a mistrial with their actions, regardless of the merits of the case.
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Re: Second one is a must-read
Gov't - We took your stuff and laws broken and charges.
MU - Fort Wayne Books.
It seems to apply perfectly to this situation and how illegal this entire thing has been (the government side of things). Can someone explain why this isn't being pushed harder?
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Re: Re: Second one is a must-read
It is being pushed, particularly in the Rojadirecta case. Sadly, after more than a year, the court proceedings have not reached a stage where such arguments could even be raised. (It's a long story, I suggest you search around for details.)
Incidentally, the government's argument is that Arcara v. Cloud Books allows the stifling of free speech when non-protected speech is suppressed. Unfortunately, Arcara doesn't say anything of the sort; it was a case where a bookstore was shut down due to prostitution happening on its premises. Essentially, the government is arguing that the distribution of copyrighted materials is no more "speech" than prostitution.
It's ridiculous, of course, and the text of Arcara makes it clear that it's ridiculous. That doesn't stop the government (and their apologists here) from making it.
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Mad
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Re: Mad
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Government not functioning
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Commission
Plus the Government gets 10% royalty, right?
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Just an idea...
1. DOJ is under the pocket of the MPAA....enough said, we've all heard this one.
2. The US DOJ is so tired of hearing from the MPAA that they are getting their cases botched on purpose by letting the MPAA interpret the laws as they see fit....thereby making the MPAA realize that what they are doing holds absolutely no legal standing. A reverse psychology if you will.
Number two is a particularly good tactic because it disallows the MPAA the use of their cookie cutter "Their users infringed...it's criminal" every time it is filed. They have been hearing from the MPAA since the days of BetaMax and VCR....You would get annoyed to after 30 years of (please forgive the meme) "They stoled muh buhquit
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Legolas Reddit:: Chris Dodd approaches...
Aragorn Techdirt: Show yourself!
*A figure steps out of the light — it is Gandalf Megaupload*
Legolas Reddit: Forgive me. I mistook you for Chris Dodd.
Gandalf Megaupload: I am Chris Dodd. Or rather, Chris Dodd as he should have been.
Aragorn Techdirt: You fell!
Gandalf Megaupload: Through takedowns, and seizures. From the lowest hearing to the highest courtroom I fought the Department of Injustice, until at last I struck down my enemy and smote its ruin upon America.
Aragorn Techdirt: Megaupload...
Gandalf Megaupload: Megaupload? Yes... Megaupload. That was my name. Megaupload.
Gimli Torrentfreak: Megaupload!
Gandalf Megaupload: I am the new Megaupload. And I come back to you now, at the turn of the tide.
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I am sure at some point the DoJ will blame the RIAA for not following up their requests for the evidence of the charges they made. Like with dajaz1.
The amazing contortions they went to to make this case fall together, will come undone and the US will look like idiots once again.
The cartels will be happy because it "hurt" cyberlockers, which like the VCR, CDs, DVDs can only ever be used to steal from them.
The country, in the midst of the ZOMG IP Most Valuable Asset dog and pony show, will have made sure that anyone thinking of anything new will make sure they are well the hell out of the US governments reach over fears one of the cartels will decide they are the next target.
Society will loose again, as tinkerers, modders, coders, etc all lost an easy way to share what they have done with others. How many new ideas were stolen by the Government when they took the servers? How many of them will have lost ground without access to the public?
All of this was done to keep some cartels stuck in the 1800's happy. How long until the pendulum finally swings the other way, and the public are finally allowed more access to their culture, ideas, thoughts without having to worry that someone somewhere will claim they are owed billions because you recited a story to your child.
I enjoy seeing the people still desperate to tear down Dotcom, he's fat, he lied, hes an asshole, etc... completely blind to the fact that many of the "supporters" of Dotcom know he isn't the Mother Theresa poster child we would have liked, but if we refuse to stand up to something wrong they want to do to him we are setting ourselves up to face the same sorts of things happening to us. You claim it won't happen, look at the TSA and how what they do has crept, look at the words DHS monitors online... PORK. 2600. Agriculture. Mexican town names. this message has now been flagged to make sure its not some secret terrorist code. (oh hell I did it again). Tyranny is not to be given a pass because the current target "deserved" it, the law is to be fair, even, just... and this case has violated all of those ideals we claim matter in this country.
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