Megaupload To DOJ: You Don't Get To Make Up The Rules That Suit You

from the rules?-where-we're-going... dept

Yesterday, we wrote about the US Justice Department arguing that there's no problem with the fact (which it admits) that it did not and could not properly "serve" Megaupload as a corporation, since it has no US presence, arguing that as long as it generally makes an effort to do so, and also promises to really serve the company once its execs are extradited to the US, it's perfectly fine. Megaupload has now hit back by pointing out that the DOJ appears to be making up the rules that it would like to exist, rather than following the rules that do exist.
The Government bears the burden of proving that it has validly served Megaupload within the letter of the Rule... and effectively concedes it cannot carry it. So the Government instead urges this Court to rewrite the Rule. It specifically puts forth three alternative arguments that no federal court has ever accepted, as far as we are aware, and for which it cites not a single relevant precedent.

First, the Government argues that, because Megaupload is aware of these proceedings and purportedly had “minimum contacts” with the United States, the Rule has no application. By this argument, the entire Rule can be disregarded wherever the Government deems it unnecessary or perhaps unduly burdensome. Second, the Government contends that, even if it must otherwise conform to the Rule, it may disregard the latter portion of the corporate-service requirement and decline to mail the summons to Megaupload. With this argument, the Government would read out of existence the express mailing requirement of Rule 4(c)(3)(C). Finally, the Government argues that, to the extent it must nod at Rule 4’s mailing requirement, it may ignore the Rule’s express prescription and simply send the summons to an address of its choosing. Here, the Government goes so far as to claim it can deliver the summons to Megaupload’s address in Hong Kong, even though that approach would essentially strike Rule 4(c)(3)(C)’s requirement that the summons be mailed to the company’s “last known address within the district or to its principal place of business elsewhere in the United States.”
But... but... you don't understand. Since the MPAA and RIAA explained to the DOJ that Megaupload is evil and Kim Dotcom is a real life super villain, the rules don't matter, right?
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Filed Under: jurisdiction, justice department, new zealand, rule of law, service, us
Companies: megaupload


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  • identicon
    Anonymous Coward, 19 Jul 2012 @ 8:29am

    Given the farcical way the DOJ has acted of late, asking for a rules rewrite is unsurprising. It's being run on a pure political basis. They stopped caring about upholding the law and now just abuse the system to serve specific groups of people.

    link to this | view in chronology ]

  • icon
    weneedhelp (profile), 19 Jul 2012 @ 8:33am

    But... but... you don't understand.

    Its on the internet. Duh.

    "Since the MPAA and RIAA explained to the DOJ that Megaupload is evil and Kim Dotcom is a real life super villain, the rules don't matter, right?"

    You know when I used to look at him, Jabba the Hutt came to mind, but now, its more like this:
    http://clipartist.info/SVG/CLIPARTIST.ORG/CUTE/cute_bear_teddy_bear_animal-1331px.png

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2012 @ 8:34am

    I don't have any clue why the DOJ feels it needs to do this. honestly this is just causing American companies to feel as though they should leave.

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2012 @ 8:51am

      Re:

      @ #3
      'I don't have any clue why the DOJ feels it needs to do this.'

      'I don't have any clue why the DoJ feels it CAN do this',

      may be better statement

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2012 @ 9:04am

      Re:

      I don't have any clue why the DOJ feels it needs to do this. honestly this is just causing American companies to feel as though they should leave.

      No, you've got it backwards. It's to scare them into staying -in- the US. This is the DOJ saying "We can reach out and touch you anywhere. If you're in the US we'll at least pretend you have some rights."

      link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 19 Jul 2012 @ 10:35am

      Re:

      Because the DoJ hired many lawyers who have backgrounds with the cartels. There will more than likely be jobs waiting for them if they somehow manage to get forced out.

      The lead lawyer on the Mega case is a former BSA lawyer, who told people they owed him money if they failed his groups audits, and would take them to court for tons of money if you couldn't satisfy their demands.

      They are used to getting what they want, despite what the law says. They have the money they get to make the rules, and now that they have agents in place in the highest ranks of the legal system it seems to be working.

      link to this | view in chronology ]

  • icon
    jjmsan (profile), 19 Jul 2012 @ 8:36am

    Different point of view

    May be we have been looking at everything from the wrong angle. All these years we have thought the anti piracy laws were to stop counterfeiting for the benefit of Hollywood. Maybe the government has been using this as an excuse to bend the rules of law to their advantage.

    link to this | view in chronology ]

    • icon
      John Fenderson (profile), 19 Jul 2012 @ 8:59am

      Re: Different point of view

      Well, yes, of course.

      The reason for the push to wildly expand copyright law is not and never has been because of piracy. It's about enabling a relatively small collection of companies to maintain a chokehold on the means of distribution.

      A big part of this is the use of IP laws to raise the barrier of entry, to make it so expensive and onerous to enter the business that very few can.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jul 2012 @ 10:01am

        Re: Re: Different point of view

        There are many tools in those companies who love being used as thin edges of the wedge for expanded government powers.

        Those tools are also dumb as a bag of hammers if they think for one second they will be exempt in some way from those expansions. Then they're just nails to be pounded like the rest of us, citizens or not.

        link to this | view in chronology ]

    • icon
      Haywood (profile), 19 Jul 2012 @ 9:54am

      Re: Different point of view

      Much the way the era of Bonnie & Clyde helped J. Edgar Hoover take over the country. States rights be Damned, there are criminals out there, we need more power.

      link to this | view in chronology ]

    • identicon
      Dreddsnik, 19 Jul 2012 @ 1:23pm

      Re: Different point of view

      " All these years we have thought the anti piracy laws were to stop counterfeiting for the benefit of Hollywood. Maybe the government has been using this as an excuse to bend the rules of law to their advantage. "

      Yes, and no. It's a symbiotic relationship. As long as Hollywood goals continue to work toward making censorship 'acceptable' the government is completely willing to let Hollywood look like the instigators. Sometimes it's hard to tell who is actually the man behind the curtain.

      link to this | view in chronology ]

  • icon
    Josef Anvil (profile), 19 Jul 2012 @ 8:43am

    Where are they?

    I'm just wondering if any of the usual people that love to cite that "it's the law" is why you have to respect copyright will show up and comment.

    Clearly the DOJ is trying to make exceptions to the law, so why can't we the people make our own exceptions to copyright law?

    I promise to only infringe for personal use and not distribute the media.

    link to this | view in chronology ]

    • icon
      Tim Griffiths (profile), 19 Jul 2012 @ 8:54am

      Re: Where are they?

      This.

      These are people who put in place and would like to strictly enforce laws that make it illegal for you to break a digital lock (even when it's held in place by spit and gum) on media we own with the intent to LEGALLY copy that media for our own use that harms no one.

      Yet when it comes to bending and even breaking of this law with the intent of doing something that is not otherwise legal in a way that has clearly caused massive harm... well... that's ok... right?

      link to this | view in chronology ]

  • icon
    Chris-Mouse (profile), 19 Jul 2012 @ 8:44am

    This is nothing new.

    The US government has been making up the law for years now.
    Gitmo, drone attacks, extraordinary rendition, warrant-less surveillance, domain seizures... the list goes on.

    link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Jul 2012 @ 8:48am

    "But... but... you don't understand. Since the MPAA and RIAA explained to the DOJ that Megaupload is evil and Kim Dotcom is a real life super villain, the rules don't matter, right?"

    What a pathetic poke. Mike, did you not sleep all night trying to write that horrible line?

    The alternative is that companies can offer services to Americans, but not be subject to US law. So you are saying you support rogue operation outside the US scamming Americans and being able to get away with it?

    How yellow of you.

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2012 @ 8:50am

      Re:

      Racist troll is racist.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jul 2012 @ 10:14am

        Re: Re:

        Stupid is as stupid does.

        link to this | view in chronology ]

      • icon
        That Anonymous Coward (profile), 19 Jul 2012 @ 10:37am

        Re: Re:

        Not racist, its trying to call this yellow journalism.
        This does not qualify, except in this trolls fevered imagination, to the great yellow journalism we have come to have prevalent in the country. One merely needs to watch Faux News for about 5 minutes and you can find classic yellow journalism upto and including editing reality to support their crazed ideas.

        link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2012 @ 8:53am

      Re:

      "The alternative is that companies can offer services to Americans, but not be subject to US law. So you are saying you support rogue operation outside the US scamming Americans and being able to get away with it?"

      MU would only be "scamming" if they DIDN'T deliver the services they promised.
      Fact is, until the shutdown, they provided EVERYTHING they promised to their customers!

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2012 @ 8:57am

      Re:

      What European banks can't offer services for American citizens no more?

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2012 @ 8:59am

      Re:

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jul 2012 @ 9:05am

        Re: Re:

        I think they're trying to hire effective trolls.

        link to this | view in chronology ]

      • identicon
        MrWilson, 19 Jul 2012 @ 9:09am

        Re: Re:

        I imagine that the entertainment industry pays their trolls better. Unless the AC thinks he can multitask... "MegaUpload is just a bunch of pirates and terrorists!"

        link to this | view in chronology ]

    • icon
      Lowestofthekeys (profile), 19 Jul 2012 @ 9:03am

      Re:

      What if Americans get scammed by the labels, are the labels subject to DOJ scrutiny?

      Not if if Super Leahy has anything to say about it!

      link to this | view in chronology ]

    • icon
      John Fenderson (profile), 19 Jul 2012 @ 9:05am

      Re:

      The alternative is that companies can offer services to Americans, but not be subject to US law.


      If someone isn't in the US and isn't a US citizen, they should not be subject to US law. It's a fundamental moral point. Whether or not they offer services to US citizens isn't relevant.

      link to this | view in chronology ]

    • icon
      GMacGuffin (profile), 19 Jul 2012 @ 9:09am

      Re:

      "The alternative is that companies can offer services to Americans, but not be subject to US law."

      No, the corporation is still subject to US civil law, just not CRIMINAL law. And the actual hominid individuals involved are still subject to the criminal law.

      The idea of prosecuting a corporation criminally is sketchy anyway -- who/what is going to jail if convicted? The Corporate Seal? Is it about criminal restitution? Civil damages would cover that better, and has a better mechanism in place.

      Nope, this is all about trying to do something big, and now about backpedaling for (what seems more and more apparent) their own incompetence.

      link to this | view in chronology ]

      • icon
        Spointman (profile), 19 Jul 2012 @ 9:52am

        Re: Re:

        And the actual hominid individuals involved are still subject to the criminal law.

        See, I'm not even convinced that this is true. Let me give a couple of examples.

        In the US, it's flatly illegal for anyone under 21 to drink alcohol. In parts of Europe, it's legal for minors to drink alcohol as young as 14. So if an American family flies to Europe, and the 14yo kid gets drunk, and a few days later (when they're all sober) the family flies back, then using the logic in this case, the kid and his parents can be arrested and charged.

        Here's another example. I don't have a US driver's license, but I do have one from, say, Japan. In Japan, I take my car out for a drive. Then I fly to the US. Since I was driving without a valid US license, this logic means I can be arrested and charged in the US for an act that was perfectly legal in Japan.

        The logical conclusion is that if you commit an act that is against US law, even if you're totally outside the jurisdiction of US law, then you can be arrested and tried in the US. This violates every inkling common sense and, I would imagine, quite a few tenets of international law.

        link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Jul 2012 @ 10:05am

          Re: Re: Re:

          Wow, you failed miserably at logic. If no crime is committed in the US (the kid didn't drink here) then no problem with the law.

          If the law says that only US corporations can violate Copyright Law (in a Criminal Manner), then maybe the law needs to be cleared up (since that statute is likely pre-internet). BUT, you can't just go ignoring the law so you can enforce the law, that's not logical.

          link to this | view in chronology ]

          • icon
            John Fenderson (profile), 19 Jul 2012 @ 10:09am

            Re: Re: Re: Re:

            If the law says that only US corporations can violate Copyright Law


            The law doesn't say that, though, and literally nobody is saying that it should. US law does only apply to US entities or to those who are in the US. That's the point.

            link to this | view in chronology ]

          • icon
            The eejit (profile), 19 Jul 2012 @ 11:44am

            Re: Re: Re: Re:

            Considering that the DoJ is arguing this, I see no ligcal fallacy in calling it out liek the bullshit it is. Would it, for example, be perfectly legal to shoot a elshman on Broadway, provided it was the exact distance of 12 yards and with a longbow? After all, that was a law in York, and New York has "York" in its name.

            link to this | view in chronology ]

            • icon
              drew (profile), 19 Jul 2012 @ 1:28pm

              Re: Re: Re: Re: Re:

              Not quite, there used to be a bylaw in York that said you could shoot a scotsman from the city walls with a bow (York having been sacked by the scots at one point).
              I believe there used to be a similar law regarding the welsh in Chester though.

              as you were

              link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Jul 2012 @ 10:31am

          Re: Re: Re:

          "In the US, it's flatly illegal for anyone under 21 to drink alcohol. In parts of Europe, it's legal for minors to drink alcohol as young as 14. So if an American family flies to Europe, and the 14yo kid gets drunk, and a few days later (when they're all sober) the family flies back, then using the logic in this case, the kid and his parents can be arrested and charged."

          Nope, you got it wrong.

          What we are saying is that because it's legal for the kid to drink at 14 in Europe, then European beer companies should be allowed to sell their products to US kids because it's legal in Europe.

          It doesn't fly, does it?

          So why should it be legally to sell access to illegal content online, just because the company doing the selling is offshore?

          link to this | view in chronology ]

          • icon
            Ninja (profile), 19 Jul 2012 @ 11:01am

            Re: Re: Re: Re:

            If a company is caught selling beer to 14-yr-olds it'll be fined and possibly shut down. And usually you are notified about the issues before being closed down. Besides, no company will sell services that would break a certain country laws much like MU did. They had both a DMCA takedown procedure that worked as the DMCA itself requires even though they had no real obligation to comply. There's no proof that the content hosted on the servers located in the US was infringing. The fact that you have content on your server that MIGHT be infringing it doesn't automagically make it infringing. My Google Drive has some content that COULD be infringing but it is not. However, to save space, I'm fairly sure that some of the LEGAL mp3 I have on my G Drive are probably duplicate with others using the service and Google keeps a single copy. It is fairly safe to assume that some of the ppl that have the same file in their drives don't OWN the songs (although you would have to PROVE they don't own that song).

            So you see, there's no crime in the first place. There's not even a civil issue. And Dotcom has offered to settle this if he gets due process, which is clearly something the US is trying desperately to deny him.

            link to this | view in chronology ]

            • identicon
              Anonymous Coward, 19 Jul 2012 @ 8:16pm

              Re: Re: Re: Re: Re:

              If the 14-year-old boy from U.S. bought a can of beer in Europe and open the can and drink it in U.S., can U.S. sue the shop selling that drink?

              Okay, maybe the case is not sensible for alcoholic drink, but how about smokes?

              link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 Jul 2012 @ 11:34am

            Re: Re: Re: Re:

            Technically speaking the US still can't raid a Europe based warehouse because it sold beer to a 14 year old residing in the US.

            It can however block all imports from that particular company at it's borders. Basically what happens with the move to all these digital goods is that the US has lost it's ability to enforce it's import / export restrictions.

            While i understand that trade has ALWAYS been done in a manner like this or similar so as to artificially adjust the local economy or industry, i'm not entirely sure that i'll be sorry to see it slowly erode into a borderless trading world.

            Yea, jobs will be lost in some areas, but jobs will be gained in others. One day borders will simply lose their meaning and while i'm sure there will still be the various local and overlord governments, at least we can hope for a relaxation on movement restrictions.

            I however don't hold any hope that this will happen in my lifetime

            link to this | view in chronology ]

      • icon
        Josef Anvil (profile), 19 Jul 2012 @ 11:24am

        Re: Re:

        Well corporations are people now, so I guess that if the corporation is convicted of criminal activity then EVERYONE employed by the corporation goes to jail or pays the fine.

        link to this | view in chronology ]

    • identicon
      Milton Freewater, 19 Jul 2012 @ 9:41am

      Re:

      "The alternative is that companies can offer services to Americans, but not be subject to US law."

      Depends on the law, doesn't it? Most taxes and tariffs are location-specific, are they not?

      The law in question only applies to US companies ... and Mike didn't make that up, remember, that's a fact of this particular law. I don't see what you're even arguing about.

      I honestly suspect you're a shill paid by Megaupload to discredit the other side.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Jul 2012 @ 10:02am

        Re: Re:

        "Depends on the law, doesn't it? Most taxes and tariffs are location-specific, are they not?"

        Well, that is the point of attempts to bring the laws up to date, to deal with the simple fact that the internet is "here" but not "here" at the same time.

        It does create a certain amount of unfair competition. If you are local, you are subject to local laws, yet a company from outside can put up a website, offer the same service, and not have to live up to any of the customer service or legal obligations.

        It means that, when it comes to "services" the laws are set by the most permissive jurisdiction on the planet. If you could find one that allowed child porn, you could setup a company and sell child porn from there to everyone in the world, perfectly legally. That would be an intolerable situation, no?

        How would you address it?

        link to this | view in chronology ]

        • identicon
          Anonymous Coward With A Unique Writing Style, 19 Jul 2012 @ 10:13am

          Re: Re: Re:

          I think it's hilarious how you guys have nothing to ever fall back on but child porn. Can't think of anything else, huh?

          Always gotta go with the one that most people find wrong. Says a lot about your position though.

          I know when I want to justify some of my actions I point out how my doing something wrong (say perhaps using drugs) is actually good because by me doing said wrong, per this example (drug use), so I'm actually taking drugs off the street thereby keeping drugs out of children's hands/noses/lungs/etc, so why am I the bad guy? You wouldn't want your children doing drugs and possibly becoming addicts or OD'ing now would you? (Note, I don't actually use drugs. Just showing how it's ridiculous to try and spin something by pointing at something else and saying, "See! You wouldn't want that now would you?!"

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 Jul 2012 @ 8:08pm

            Re: Re: Re: Re:

            "I think it's hilarious how you guys have nothing to ever fall back on but child porn. Can't think of anything else, huh?"

            There isn't a lack of anything else to fall back on. All I am doing is giving you a worst case scenerio, and asking you to explain how you would handle it.

            Also, when you say "child porn" it doesn't mean 5 year olds, it can mean the difference in laws. As an example, the 16 year old topless girls in the UK or the slightly underage nude models from the Netherlands. Would you consider it acceptable that these companies could sell movies with 16 year old girls having sex (which was legal in that country) in the US without issue? What if they stream it?

            See? It's not the stupid "think of the children" crap like Mike tried to pull the other day, it's a true example of how the difference in laws can be an issue.

            So, now, would you like to address the issue rather than settling back on tired spinning?

            link to this | view in chronology ]

            • identicon
              Anonymous Coward With A Unique Writing Style, 19 Jul 2012 @ 8:36pm

              Re: Re: Re: Re: Re:

              Wow. You think a company preventing another company from offering an application that would allow children who can't speak to actually speak is " 'think of the children' crap". That pretty much says it all right there about you and your point of view. When you say "think of the children" and use it to curtail due process as is the case here, well... that's all well and good. But when an actual child is being silenced because of ridiculous patents, well that's too fucking bad and it's just Mike pulling a stunt and more of his crap.

              You know what, that says it all really. You're most definitely not worth responding to and I'm glad you did say that. So others can see exactly the kind of person you are and the kind of person who is trying to trample on the rights of others and who believes that the U.S. should impose it's will on the world.

              link to this | view in chronology ]

              • identicon
                Anonymous Coward, 19 Jul 2012 @ 9:33pm

                Re: Re: Re: Re: Re: Re:

                "You know what, that says it all really. You're most definitely not worth responding to and I'm glad you did say that."

                I take that as a "I can see your point, and I cannot come up with a way to argue it, so I will settle for attacking your personally".

                So now that you are done being dismissive and making personal attacks, would you like to try answering the question? It is particularly relevant here.

                link to this | view in chronology ]

                • identicon
                  Anonymous Coward, 19 Jul 2012 @ 10:50pm

                  Re: Re: Re: Re: Re: Re: Re:

                  It's not a personal attack if it's attacking your argument. Uncertain statistics (that the industry is fond of) are no reasonable comparison with an actual case study of a child being limited. You think the latter isn't worth defending, as opposed to initiatives that only somewhat marginally target the issue of child pornography while actually largely targeting allegedly dissemination of content you deem as illegal. That much is fact.

                  And really, you're complaining about personal attacks? Every day we come to Techdirt we have to deal with you trolls insisting that if we don't support copyright, we're all two-faced, slimy, weasel-wording, chubby, Pirate Chicken Littles. Your side has no claim to validity to scream "personal attack".

                  link to this | view in chronology ]

                  • identicon
                    Anonymous Coward, 20 Jul 2012 @ 1:03am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Ahh, so now you are denying that child porn exists.

                    Congrats. You have finally blanked out reality.

                    link to this | view in chronology ]

                    • icon
                      drew (profile), 20 Jul 2012 @ 1:11am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      What. The. Fuck?
                      That is quite the most ridiculous pile of bilge you've come up with yet.

                      link to this | view in chronology ]

                    • identicon
                      Anonymous Coward, 20 Jul 2012 @ 3:43am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      Want to point out where I said flatly that "child pornography doesn't exist"? I said the statistics were "uncertain". Half the argument of why shills claim cyberlockers should be stopped is because you claim child pornography is on cyberlockers, therefore you should throw the book at them. Not only are legislative attempts at limiting child pornography debatably successful and are usually aimed at other issues unrelated to child pornography (e.g. alleged illegitimate music downloads), there has been no proof that a majority of content on cyberlockers, let alone Megaupload, is child pornography. However, you don't care whether any exists. You don't care that your precious IP laws are affecting other children, who are clearly undeserving of anyone's concern in your self-justified opinion. You just want Kim Dotcom to go (to quote Candace Flynn-Fletcher) "DOWN! DOWN DOWN DOWN DOWN DOWN!", and anyone else who thinks that there were issues in the way everything has been handled so far is a slimy, weasel-wording, two-faced, chubby Pirate Chicken Little.

                      Not only did you perform a personal attack you even put statements that weren't there. The one who has blanked out reality is you.

                      link to this | view in chronology ]

                • identicon
                  Anonymous Coward With A Unique Writing Style, 20 Jul 2012 @ 4:28am

                  Re: Re: Re: Re: Re: Re: Re:

                  I am not being dismissive or making personal attacks, I am commenting on the what you quite clearly said. A child being silenced is "crap". But if it comes to protecting IP and stopping piracy, the first thing you and your side fall back on is "think of the children" and here today, you went right to child porn to try and further your point.

                  The truth is you have no point, so there's nothing to argue against it.

                  And please. Personal attacks and being dismissive, I find it hilarious that you have the gall to say that. That is all you and your type do on this site day in and day out. Or should I link to quotes? The people who most sound like you (and really, it's a shame you ACs hide behind the AC moniker, because I'd really love to see what other comments you've left... I can all but guarantee you've thrown a few "hey chubby" comments at Mike) are the ones quick to dismiss any attempts at doing business in modern ways and are also quick to label everyone a pirate who says, "Hmm. This doesn't seem like a good idea insofar as actually stopping piracy."

                  I mean, again, why are you arguing child porn? This is about Megaupload. And truth be told, all these hypotheticals and whatnot are not worth discussing. At the end of the day, the U.S. has overstepped it's bounds and has resorted to demanding that others do what they want them to. Falling back on "but you have U.S. customers" is the biggest crock of all, it shows you just how truly desperate they are and how full of holes their case is.

                  link to this | view in chronology ]

            • identicon
              Anonymous Coward, 20 Jul 2012 @ 5:59pm

              Re: Re: Re: Re: Re:

              So why don't you bring up anything besides child pornography? Oh, I understand why - it's because whenever people counter your arguments you accuse them of supporting child pornography.

              And yet you have the gall to call everyone else two-faced. Bollocks.

              link to this | view in chronology ]

        • identicon
          Another AC, 19 Jul 2012 @ 10:30am

          Re: Re: Re:

          You're ignoring the other side of your arguments. If I were the local business and someone set up shop and didn't have to play by the same rules as me, that's called life.

          What you ignore is the fact that I can do the same thing to them in their place of headquarter. You also ignore the fact that even if they do business in my locale, they are still subject to laws in their own locale that I am not... by your argument that's somehow unfair. Your argument doesn't hold up.

          Also, if someone sold child porn online in a place where that's legal, there IS NOTHING WRONG WITH THAT (or it would be illegal). That's why the law in the US says it's also illegal to possess child porn silly.

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 19 Jul 2012 @ 9:36pm

            Re: Re: Re: Re:

            "You're ignoring the other side of your arguments. If I were the local business and someone set up shop and didn't have to play by the same rules as me, that's called life. "

            No it's not. If the other side isn't following the law, and is making their living by doing something you cannot legally do, it's not "life", it's a crock of shit and unfair competition.

            We aren't talking some great innovation here, we are talking about a guy who set up a file trading site and made money charging people to view copyright material without permission, and then used a series of companies to launder the cash and make the money look legit.

            Do you honestly think it's a better business model, or just someone making a fast buck by not paying for his raw material products?

            link to this | view in chronology ]

            • identicon
              Another AC, 20 Jul 2012 @ 6:29am

              Re: Re: Re: Re: Re:

              Wow your tone changed fast. So did your argument I see.

              "No it's not. If the other side isn't following the law, and is making their living by doing something you cannot legally do, it's not "life", it's a crock of shit and unfair competition."

              I'm sorry you feel that way, but that is life I'm afraid. What 'the other side' is doing isn't illegal, you may think it's unfair but that's irrelevant. Life is unfair AC, you have to learn to deal with it.


              "... we are talking about a guy who set up a file trading site and made money charging people to view copyright material without permission, and then used a series of companies to launder the cash and make the money look legit."

              No we aren't talking about that. None of this has anything to do with your point I was replying to. Not only that none of that seems to be supported by the facts of the case. This appears to just be your opinion, so I'll ignore it.


              "Do you honestly think it's a better business model, or just someone making a fast buck by not paying for his raw material products?"

              If what he is doing is legal where he does it, then yes it's a WAY better business model. If the cost of raw materials is $0, that's a great thing for business!

              Of course you and I disagree as to what the business really is - simply selling access to online storage is not even in the same realm as selling copyrighted 'goods'. The whole money laundering thing appears to be more made-up opinion of yours that are not supported by the facts of the case.

              link to this | view in chronology ]

        • icon
          John Fenderson (profile), 19 Jul 2012 @ 1:10pm

          Re: Re: Re:

          It means that, when it comes to "services" the laws are set by the most permissive jurisdiction on the planet.


          Uh, no, it doesn't mean that.

          If you could find one that allowed child porn, you could setup a company and sell child porn from there to everyone in the world, perfectly legally. That would be an intolerable situation, no?


          However, the customers would be breaking the laws of the countries they're in and would be subject to prosecution, as it should be -- so "perfectly legally" would only apply to half of the transaction.

          Saying that you are only subject to the laws of the jurisdiction you are in is not saying that everyone can act above the law. Not even close.

          I'm amazed that this stuff is even debated anymore, since this type of situation isn't new -- it predated the internet by at least a few hundred years -- and we have loads of existing debate and settled law covering these issues.

          link to this | view in chronology ]

          • identicon
            Anonymous Coward, 20 Jul 2012 @ 2:04am

            Re: Re: Re: Re:

            "I'm amazed that this stuff is even debated anymore, since this type of situation isn't new -- it predated the internet by at least a few hundred years -- and we have loads of existing debate and settled law covering these issues."

            The issue is that with the internet, there is no physical material to intercept, no simple way to check what is coming in. So no matter what has happened for at least a few hundred years, we have an entirely new situation that the laws just don't deal with very well.

            As an example, would you consider it "possession" if the US based customer could only see streaming videos of the content? Does the customer actually "possess" them?

            What happens when you move to a product like movies or music, where the actual possession of them isn't illegal, but the selling of them from offshore without permission is (as it would be in the US considered a criminal copyright violation to sell them)? Should the offshore company get a walk just because they are offshore? Can they continue to do business in the US and thumb their noses at the law?

            Clearly, things are different, we cannot rely on the existing laws to cover it properly and fairly.

            link to this | view in chronology ]

            • icon
              John Fenderson (profile), 20 Jul 2012 @ 9:45am

              Re: Re: Re: Re: Re:

              we have an entirely new situation that the laws just don't deal with very well.


              We don't, though. These are very old issues. The only thing the internet makes different is that it makes information transmission more efficient.

              As an example, would you consider it "possession" if the US based customer could only see streaming videos of the content? Does the customer actually "possess" them?


              Yes, but temporarily. But why is the concept of "possession" important? It's not important in terms of copyright law (which is about distribution, not possession).

              Should the offshore company get a walk just because they are offshore?


              Yes. The offshore company is not breaking the law. The person doing business with them is, though, so it's not like the activity is suddenly legal because an offshore company is involved.

              Can they continue to do business in the US and thumb their noses at the law?


              But they are not thumbing their noses at the law. In your hypothetical, they are obeying the law. It is the US-based customer who is doing the node-thumbing. Why are you trying so hard to avoid putting the responsibility on the persona actually doing the law-breaking?

              Clearly, things are different, we cannot rely on the existing laws to cover it properly and fairly.


              I still don't see how things are different. These issues have existed for literally as long as nations have existed. They are not unique to the internet at all.

              Existing law does just fine, as near as I can see, except that changes over the last few decades have made the law oppressive and unfair to anyone who isn't a major corporation.

              link to this | view in chronology ]

        • icon
          Karl (profile), 19 Jul 2012 @ 1:12pm

          Re: Re: Re:

          If you could find one that allowed child porn, you could setup a company and sell child porn from there to everyone in the world, perfectly legally. That would be an intolerable situation, no?

          Copyright infringement (or, for that matter, unfair competition) are not even remotely on the same scale of harm as child porn.

          But I'd just like to point out that even with child porn, your argument has significant problems.

          For example, in Japan, there is a significant amount of pornography that would be considered "child porn" in the U.S. The laws and culture in Japan are different, and all of this pornography is perfectly legal there. (When I worked at Tower, the book buyer was sent some of this stuff from publishers in Japan as samples. Obviously he sent them right on back.)

          If one of those porn sites sets up a page on the Internet, does the DOJ have the right to have Japan arrest those companies? Even though they have done nothing illegal under Japanese law?

          link to this | view in chronology ]

          • icon
            Violated (profile), 19 Jul 2012 @ 9:06pm

            Re: Re: Re: Re:

            That case has already been seen in on-line gambling sites when the USA has banned this business. Most European gambling sites ceased dealing with all USA aspects as a result but three of these sites I recall did not still welcoming US gamblers, their money, and even advertising to them in the US.

            The result was that ICE seized their domains, their US based assets and accounts, then the DoJ started criminal action against them. I only don't know what happened after that.

            Such gambling sites are unfortunately lawful in Europe including here in the UK but the USA still ATTACKED them because they still traded business with the US.

            They have now done the same with MegaUpload. I would say US unlawful Japanese porn is also an option but keep in mind gambling sites are money (against Las Vegas etc) and MegaUpload is money (against Hollywood MPAA/RIAA) but this questionable porn would have so few US porn dealers care any so it is not a money matter.

            link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2012 @ 1:56pm

      Re:

      You mean like how American businesses can do business with China without being at risk of its owners and chief officers being summarily extradited to China to face their justice system for comments they posted on the internet?

      link to this | view in chronology ]

    • icon
      btr1701 (profile), 20 Jul 2012 @ 9:00pm

      Re:

      > The alternative is that companies can offer services
      > to Americans, but not be subject to US law.

      So your position is that the Federal Rules of Procedure can be rewritten on the fly by DOJ lawyers-- who can make up whatever they like-- whenever advances in technology makes a traditional prosecution inconvenient?

      link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2012 @ 8:53am

    http://www.wired.com/threatlevel/2012/07/doj-sues-telecom-over-nsl/

    This coming from an agency that is suing a telecom with the argument that by challenging its authority it broke the law.

    Anybody has any respect for the DOJ as an instrument to uphold the law today?

    Now the government want to troll terrorists or at least is that what they say, but I suspect there are some government employees here already running a test run.

    http://www.wired.com/dangerroom/2012/07/counterterrorism-trolls/

    But I digress the DOJ may be sensing that it is full of shite that is why they are trying very hard to find a connection any connection.

    https://torrentfreak.com/feds-drag-rapper-swizz-beatz-into-megapload-case-120718/

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2012 @ 8:54am

    Oh Mike, why did you have to put in that last line. It's so painful

    link to this | view in chronology ]

  • icon
    Laurel L. Russwurm (profile), 19 Jul 2012 @ 9:06am

    the heart of the matter

    Um. They don't?

    That's what governments do: they make up the rules, sometimes known as law.

    What is at issue here seems to be jurisdiction. The MegaUpload prosecution is supposedly based on the fact that there were some US based webservers. But that's not true of young Richard O'Dwyer they are extraditing from England even thjough he didn't break UK law.

    Your government is laying claim to ownership (and control) of the entire Internet. And our governments are letting it.

    link to this | view in chronology ]

    • identicon
      Rabbit80, 19 Jul 2012 @ 9:27am

      Re: the heart of the matter

      I was thinking something similar myself - some of the arguments that the feds are making should surely help Richard in his case - however the clear difference is that Richard is being charged as an individual, not a company.

      link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 19 Jul 2012 @ 9:13am

    I'm happy for you, Pirate Mike. Your buddy, Pirate Kim, has some great arguments. Policy-wise, his position just doesn't make sense. He's saying that if a foreign corporation commits intentional torts, they can be served under the FRCP even without a U.S. address. But then if a foreign corporation commits criminal acts, they can't be served under the FRCrP if they don't have a U.S. address. Why would we want to reward foreign corporations for committing crimes if we punish them for committing (lesser) torts. He's obviously got the better textual argument (it says "must"), but I think the government wins on common sense. I think the statute can fairly be read to imply that when no such address exists (although I'm not convinced that there isn't constructive notice under Va. law), there is no need to mail the summons. Your boy actually has a good case on this point. Congrats. Could go either way though, I think.

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Jul 2012 @ 9:21am

      Re:

      What common sense has to do with the "law"?

      It is common sense to apply the maximum statutory damages designed to punish companies to a mother of 3?

      Does it makes sense to go around suing your won best customers?

      Does it makes sense to charge 20 times for the same thing and when people don't pay one of those times scream "thieves!"?

      link to this | view in chronology ]

    • identicon
      Milton Freewater, 19 Jul 2012 @ 9:46am

      Re:

      Common sense suggests that a law with the word "must" in it MUST be followed if you want a judge to sign off.

      link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 19 Jul 2012 @ 9:49am

      Re:

      A good point ruined by name calling.

      link to this | view in chronology ]

    • icon
      Ninja (profile), 19 Jul 2012 @ 11:33am

      Re:

      Except that there's no proven crime or civil offense from MU. And the US Govt is throwing the evidence down the drain.

      Still, a somewhat good point ruined by unnecessary name calling as jupiter noted.

      link to this | view in chronology ]

    • icon
      techflaws (profile), 19 Jul 2012 @ 10:23pm

      Re:

      I think the government wins on common sense.
      That would be a first.

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 20 Jul 2012 @ 4:19am

      Re:

      You've no clue.

      Torts are civil law and no basis for criminal charges doof.

      As it happens the proceedure for serving someone for civil suite are not as strict. This is in part because only money and not the punative power of the state's monopoly on the legitimate use of force is involved.

      It seems based on this variance and the very deliberate language the legislators chose, they deliberately placed businesses like MegaUpload outside Federal criminal jurisdication.

      There are certainly good policy reasons for doing so. What you fail to understand is that your wish for how it should be is not how the law is written or how it is, which is why so many non-US companies do are content to do business with US companies and businesses.

      If being up for being arrested under US federal criminal law is a risk of doing business with the US and its businesses or companies, this is a substantial risk that most businesses are probably going to prefer to not have to deal with.

      link to this | view in chronology ]

  • identicon
    DCX2, 19 Jul 2012 @ 9:15am

    Lame

    Allegedly steal hundreds of millions from wealthy corporations? The US will hunt you down no matter what country you live in, and will violate law after law in order to punish you even before trial, by destroying your businesses, seizing ALL of your assets, and destroying your customers' data.

    Actually steal hundreds of billions from middle-class Americans, destroy the global economy, and bring about the worst recession and intense job less in nearly a century? No charges. No trial. No jail time. Instead, you are GIVEN money because you're "too big to fail".

    The US Government's priorities are all fucked up, that's for sure.

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2012 @ 9:18am

    There's this little matter of jurisdiction. I suppose the DOJ feels it rightly serves the country of New Zealand by local courts. Next thing we will be hearing is that New Zealand needs to pay the US taxes for that representation.

    Apparently, DOJ feels there is no need of jobs in the US, unless you're a lawyer or congress critter. It's been busy closing server farms and making up laws as it goes along into what it wants them to say and not what they say. Is there any reason that jurisprudence should continue to look at past case results in determining the out of present cases in court? It looks like you can just write it up how you want it to come out by the looks of things.

    Is there any reason why you could think of that the average citizen no longer trusts it's government?

    link to this | view in chronology ]

  • identicon
    Bengie, 19 Jul 2012 @ 9:21am

    Ummm.. logic fail?

    If the government can't contact a corp because the CORP DOES NOT EXIST IN THE USA, then maybe it should not be worrying about civil cases.

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2012 @ 9:42am

    As the once-mighty ship America sank slowly in the West ...

    the captain, first officer and crew were frantically doing their utmost to serve tons of steak, vats of champagne and gallons of caviar to a few grossly-overweight gluttonous rich (and mainly foreign) gold-laden passengers on-board who were demanding they be fed immediately (or else "the ship gets it") and promising the captain, first officer and crew unimaginable riches and enormous future success in exchange for an endless supply of more calorie-laden fattening food.

    Naturally, the ship sank and everybody on-board drowned*.

    *Except the aforementioned fat rich (mostly foreign) passengers, whose extreme lard buoyed them to the surface and floated them to the safety of yet another ship that was destined to sink with them on-board.

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2012 @ 10:21am

    as i see it

    IMO The problem is people still see copying as theft, and their sense of entitlement to make "big money" off an idea. The internet is just a tool and nothing else. Yes it affects a lot of business models but that doesn't mean it's bad and evil, it just means that corporations have to reinvent themselves.

    Unfortunately they just change the rules to fit an outdated business model instead of trying fix the situation. Between patents and copyrights, it's just how it has always been done and people as a whole fear change.

    link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Jul 2012 @ 1:48pm

    If the DoJ can rewrite the laws in court to criminalise what has previously only incurred civil liability, that's effectively a coup that usurps the legislative authority's powers.

    If the DoJ and courts can collude to rewrite the jurisdiction to include any business on earth that happens to do business with a US company or business, that's an extension of this coup to the whole world, or the first foot on the road to US trade and commerce isolation.

    link to this | view in chronology ]

  • identicon
    lawerencehar, 26 Oct 2012 @ 4:26am

    party makeup

    Party makeup is all about looking distinctive with the right mixture of glamour, glitz and sparkle. The concept of parties is about impressing people with your dressing sense, makeup and looks. for more information you can visit party makeup

    link to this | view in chronology ]


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