As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported
from the the-importance-of-good-legal-help dept
While the cases of Dajaz1 and Rojadirecta have shown that the US government wants nothing to do with lawsuits around domain seizures when those sites lawyer up with strong legal teams, it has continued to railroad those with less-than-stellar legal support. We saw it with NinjaVideo where it was clear that the defendants did not have particularly strong legal advice, and because of that were pretty much forced into plea bargains. And, now, the same basic thing appears to have happened with a guy named Yonjo Quiroa, who had nine different sites that ICE seized in January of this year. They arrested Quiroa in February, and he's not only been held without bail since then, but he's now done a plea bargain in which he's pleading guilty to a misdemeanor charge, expecting to get 6 to 12 months in jail (remember, he's already been there for 7 months) and will then be "removed from the United States."From the letter his lawyers sent on his behalf to the court, it's clear that Quiroa was given a public defender. There certainly could be differences between his case and others, but the differences between the cases where sites had well-known, widely respected litigators, and those where they did not, is pretty stark. Of course, the feds understand this and use it to their advantage in pushing those they've gone after into plea bargain deals. Now, don't be surprised when ICE's John Morton starts using the case of Quiroa as an "example" of all the great successes they've had in seizing websites...
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Filed Under: deportation, domain seizures, legal help, plea bargains
Reader Comments
The First Word
“Since he only provided LINKS, and not the content, Google, Bing and Yahoo should also be held liable and arrested as he was, as they are guilty IN THE EXACT SAME MANNER as he is.
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Once Again, Outcome will be:
Perhaps governments could still BLOCK them if in their own countries if they must (politics will settle that one). But seize them? Never!"
I'm fairly sure that it's already being worked on.
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Re: Once Again, Outcome will be:
Search for .onion on your favorite search engine, and start browsing.
It's basically a tool for anything on the dark web, which is rather scary so be for-warned.
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Re: Re: Once Again, Outcome will be:
What I am alluding to will be very different. Domains as we know them today might simply not exist and there will be nothing to seize. Perhaps data could still be blocked at a destination (domain seizure is far, far more extreme than blockage at a destination) and as I said politics will sort it (the latter) out.
Things have barely begun. It would be wise to expect the unexpected.
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Getting a bit off-topic
About the most that can be done to a site has simply been DDOS attacks and hacking the servers as has been shown through the Anonymous taking down a Child Porn hosting service. Since traffic to .onion sites stays strictly through the TOR network everything is completely encrypted and bounces around the network randomly to find a path, so it's even about impossible to find out where the traffic originates or is destined to.
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Re: Re: Re: Once Again, Outcome will be:
There is nothing that requires any site to use a domain name. Domain names are purely for human convenience. "The Dark Web" can (and does) avoid this problem by simply not using them -- sometimes by replacing them with a different human convenience and sometimes by just using IP addresses directly.
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Will it be 'Nothing to see here, national security', perhaps the ever popular 'But... Piracy!', or will they finally be honest enough to admit that they just don't care about that whole 'legality' thing, as those pesky 'laws' and 'rights' just get in the way of fighting the top scourge of the century: People Sharing Files Online.
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Then they get you for violating probation and you spend the next ten years being milked for fines and fees and in and out of custody.
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There isn't much wiggle room here.
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This is completely wrong. He was not putting any infringing content on his sites.
According to the complaint, the only thing that Quinoa was doing was providing links to pre-existing streams on other sites. In other words, he would be the equivalent of a myVidster user.
He is not even alleged to have uploaded any infringing material to any streaming website. Nor is he even alleged to have had any direct contact with anyone who did.
In other words, he's not even allegedly guilty of direct infringement; and he's not even allegedly guilty of "aiding and abetting" the direct infringers. It is extraordinarily likely that he has not broken any criminal law at all.
But even if he was guilty of "aiding and abetting" infringement, it would only be infringing the public performance right. This is not a felony; even with repeat offenses, it can only be a misdemeanor at most.
It's likely that this is what he pleaded guilty to.
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Karl, the courts see through that shit. If his site has a page called "SEE THE SUPER BOWL LIVE FOR FREE ON OUR SITE" and he embeds the illegal stream, he is right there infringing. He isn't taking user supplied content and acting as an innocent host, he's actively and aggressively aiding, abetting, and profiting from infringement.
The courts ain't fooled by that shit.
He plead guilty because... he is. He didn't do it once, he did it over 9 different sites with the same intentions.
Sorry Karl, it's hard to argue here. He's not an innocent host, he's not a link site - it's a guy actively adding content that he knows infringes on his site. Petty criminal perhaps, but a crook none the less.
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"profiting from infringement" vs "SEE THE SUPER BOWL LIVE FOR FREE ON OUR SITE"
Free and profit, the cartels claim that is impossible so the courts can't accept that.
The fact he has been held for this long as they tried to get him to accept and agreement raises questions about a speedy trial, and how the system punishes people who demand a fair trial rather than being forcefed plea deals.
But he is a horrible person so it is perfectly fine to abuse the law to get the outcome that lets them show off their amazing record.
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"Free and profit, the cartels claim that is impossible so the courts can't accept that."
As soon as you say "cartels" it's pretty much hard to take you seriously. It's laughable to think you would have anything other than a totally one sided opinion when you start there.
"The fact he has been held for this long as they tried to get him to accept and agreement raises questions about a speedy trial, and how the system punishes people who demand a fair trial rather than being forcefed plea deals."
Actually, the time between arrest and arraignment in most criminal trials is short, but from there to the actual trial can be literally a year or more. Often in the preliminary stages, each motion hearing can add 4 to 6 weeks wait as everyone goes through the motions, notices filed, posted, served, and the like.
It should be noted as well that this guy appears to have been held as much for reasons of immigration as anything else, as he is apparently getting deported once his sentence is served. There is potential, as a result, that his plea deal is to shorten the time to the inevitable, rather than rotting in jail for any amount of time waiting.
"But he is a horrible person so it is perfectly fine to abuse the law to get the outcome that lets them show off their amazing record."
Nobody says he is a horrible person - he is a person with poor choices of businesses to enter into. In my life I have met many evil people with decent jobs or real businesses, and I have met totally nice and gentle people who sell drugs or steal for a living. The acts don't always define the person.
"But sadly the courts seemed to be fooled by the idea that if the Government says it isn't violating the 4th amendment it isn't happened even when there is evidence showing otherwise."
Not sure how you get to a 4th Amendment issue here. Due process does not suggest that someone can continue an illegal business until judgement is rendered, in the same manner that a dope dealer does not get to retain his scales or the car he delivered the drugs in pending the trial. On the surface, the case can be and has been made that the sites are illegal, and a cursory look at them would certainly make it appear that way. It's perfectly reasonable for seizure of these assets to happen until the case is resolved.
Basically, you "cartel"-ed yourself into a bunch of bunk, which has now been debunked. I hope it helps you out.
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2. Which corporations does the MPAA represent: Wikipedia
Now from the words of a former MPAA employee, Jon Leibowitz, speaking about the risks of trade associations easily becoming cartels: FTC Speech
Seems to me that the risk is rather high on many accounts, could be price fixing media, could be price fixing licenses, could be non compete agreements, etc...
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2. Notice "former" employee. You don't think perhaps he has an ax to grind? The potential for price fixing and such exists with or without an association, the players in most industries all know each other anyway. They don't need some special association handshake to make it possible.
So, now that has been debunked too. Plenty of bunk in this discussion, no?
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Putting on cowboy boots doesn't make you a cowboy.
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NEXT!
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Not according to the myVidster ruling.
Simply: merely watching an infringing stream is not any form of copyright infringement at all. So, helping those people watch those streams is not secondary copyright infringement, since they didn't infringe in the first place.
If he had uploaded the material to be streamed, then he would be guilty of copyright infringement. If he had directly aided the people who uploaded the material, he would be guilty of aiding and abetting copyright infringement.
Since he did neither, he is guilty of neither.
The courts ain't fooled by that shit.
Name one case where the courts have found someone who only links to streams guilty of infringement. Just one. Not a plea bargain, not a settlement, but where a judge has actually ruled on it.
You won't be able to find any such case. Because there aren't any.
There are, however, plenty of cases where judges ruled that merely linking to infringing content is not infringing. Not just myVidster, but Kelly v. Arriba Soft and Perfect 10 v. Google.
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Quiroa linked to copyrighted works so they could be streamed. Since it's streaming, only the public performance right is implicated. I think we agree on that. That's what the Second Circuit said is United States v. ASCAP, and I think that's the correct view. If there's no downloading for later viewing, then the mechanical rights of distribution/reproduction are not implicated (ignoring for now the possibility of RAM copies and such).
Embedding a video to be streamed by others violates the public performance right. There is no doubt about that. The debate is over whether the embedder is a direct or indirect infringer. You say that it's only indirect liability. I think that's reasonable, since one who embeds authorizes the performance (and only the right holder has the right to authorize performances). The embedder is still an infringer, but their liability is secondary, not primary. That, of course, doesn't really matter since they're still liable for the infringement, but there is the distinction to be made.
But there is also an argument that the embedder is a direct infringer. To be directly liable for infringement of the public performance right, "a defendant must have engaged in conduct that is volitional or causally related to that purported infringement." In re Cellco Partnership, 663 F.Supp. 2d 363, 370 (S.D.N.Y. 2009). Furthermore, "to impose direct liability, there must be a nexus sufficiently close and causal to the illegal infringement that one could conclude that the defendant himself trespassed on the exclusive domain of the copyright owner." Id. (internal citations and brackets omitted).
An embedder's conduct is volitional and causally related to the performance, and the nexus is sufficiently close. In fact, there is an argument that merely embedding the video is itself a performance, even if no one actually clicks "play" and watches the video. Posner pointed out that this is a possibility, and there's plenty of case law to support it. The key is in understanding that a public performance requires only that the video is able to be perceived, not that it has actually been perceived. As Nimmer points out, "a public performance merely requires that such performance be open to, that is, available to, a substantial number of persons. It is not necessary that they in fact attend or receive the performance." 2-8 Nimmer on Copyright § 8.14 (internal quotation marks omitted).
In fact, the House Report discussing the public performance right is instructive:H.R. Rep. No. 83, 90th Cong., 1st Sess. at 29. Note the word "capable."
As for cases saying that linking is infringement simpliciter, there are several. Try this:Live Nation Motor Sports, Inc. v. Davis, 3:06-CV-276-L, 2007 WL 79311 (N.D. Tex. Jan. 9, 2007) (emphasis added).
So it's not as simple or as cut and dried as you and Mike seem to think. Linking to infringing material is itself infringement. Whether it's direct or indirect infringement is debatable. I know you both like the server test, but that test has only been adopted by the Ninth Circuit. Others have rejected it. Either way, the server test only speaks to direct liability, and it doesn't say that a linker is not liable. It only says their not liable as a direct infringer. But so what? They're still liable and subject to the full range of remedies under the Act.
Bottom line is that the law is unsettled, and there is support in the case law and commentary for more than one view.
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I would recommend reading what actual lawyers say about the case. Mike's reading of it is a bit off.
Barry Sookman has a great writeup: http://www.barrysookman.com/2012/08/08/understanding-flava-works-v-myvidster-does-inline-linking-inf ringe-copyright/
Arron Bartell has another: http://tmtlaw.default.wp1.lexblog.com/2012/08/15/not-so-fast-did-the-7th-circuit-really-just-say-its -okay-to-embed-copyright-infringing-videos-on-the-web/
I recommend reading the amicus brief filed by Google and Facebook in the myVidster case: http://docs.justia.com/cases/federal/appellate-courts/ca7/11-3190/17/0.pdf
They explain that linking to infringing material can itself be infringement, though they argue that it's indirect (but not direct) infringement:(emphasis added).
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For instance by:
a) adding a generic no knowledge statement
or
b)adding a no knowledge warning statement that appears in between the link being selected and transfer being made to where the content is being shown
and
c) following DMCA (or DMCA like) procedures so that once a link has been identified as infringing copyright to permanently block it
and
d) return to the copyright holder or their representative any revenues earned by the link site that can be identified as directly attributable to the identified link.
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Just adding a statement that they don't have knowledge won't mean a thing if the plaintiff can show there was actual or constructive knowledge.
The DMCA safe harbors would protect the search engine, but again, only if the search engine has no knowledge, either actual or constructive, of the infringing link.
Returning revenues to the right holder would be a nice gesture, but it would have no bearing on the issue of liability. The search engine would still be liable for the infringing links it knowingly provided.
Google avoids liability because it takes down infringing links when given notice of their existence. Thus, Google doesn't knowingly and intentionally provide any infringing links.
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The Ninth Circuit panel in Kelly v. Arriba Soft actually said that inline linking directly violates the public display right:Kelly v. Arriba Soft, 280 F.3d 934, 946 (9th Cir. 2002) opinion withdrawn and superseded on denial of reh'g, 336 F.3d 811 (9th Cir. 2003) (emphasis added).
That opinion was withdrawn for procedural reasons, not because the reasoning was unsound, but it shows you that the issue is far from settled. The passage I quoted endorses the argument that merely making an image available is a public display, even if there's no proof that any clicked on the link or displayed it. It also rejects the "server test" reasoning.
The Ninth Circuit in Perfect 10 found that Google would be a contributory infringer for linking:Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007) (emphasis added).
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Section 106 gives the right holder the exclusive right (1) "to do," and (2) "to authorize" a public performance.
The exclusive rights "to authorize" a public performances is meant "to avoid any questions as to the liability of contributory infringers." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 61.
So one who violates the right "to do" a public performance is a direct infringer, and one who violates the right "to authorize" a public performance is a contributory infringer. The important thing to note is that both are infringers of the 106 right. Whether they're a primary or secondary infringer doesn't matter. Both are infringers, and both are treated the same under the Act.
Section 501 defines infringement:Since only the right holder has the exclusive right "to do" or "to authorize" a public performance, anyone who violates either action ("to do" or "to authorize") is an infringer.
Quiroa pleaded guilty to Section 506(a)(1)(A), which provides:Notice how it only refers to one who infringes a copyright (as is defined in Section 501), and makes no reference to whether it was a violation of the right "to do" or "to authorize." Either one is sufficient to impose criminal liability under Section 506.
You are saying that one who violates the "to do" is a direct infringer, but one who only violates the "to authorize" is an aider and abettor. I don't see how that matters. One who violates the right "to authorize" a public performance is an infringer, and Section 506 clearly makes that infringement a criminal act without the need to bring in aiding and abetting like is outlawed in 18 U.S.C. 2.
The Copyright Act makes linking a crime whether you consider it to be a violation of the right "to do" or "to authorize" a public performance. It matters not which one in particular the defendant has done since both are treated equally.
Does that make sense?
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One of the common threads around here is that "merely linking to" or "merely embedding" isn't infringing. But I think many people here miss the nuance. As you cited in Perfect 10 v Amazon, there are ways that even a search engine MIGHT be considered to be aiding infringement. It's not as simple as "it's a link, dummy".
Further, in this particular case, you get a further nuance. A site operator intentionally adding a link to infringing material or adding a link which causes infringement to happen (public display) are doing so of their free will. Unlike an automated bot system like Google, these site operators are hand coding pages or writing blog entries to specifically provide access to these contents.
They understand and know that they have not obtained the rights for public display, they know they haven't received license or approval, and yet they do it anyway. It's pretty hard to argue that they did not know, especially in the case of something like a PPV event or the Superbowl, that the work was copyright to someone and would require a license to distribute or give public display.
Many sites try to hide behind the "user submitted" or "automatically linked" defenses, but that too is still with risk. If some of the accounts on your site can be noted as fake, sock puppets, or site owned, then you risk that all that those "users" have done to be your responsibility. Automated systems that look only for infringing sports feeds, as an example, are not much better - the intent is to aid infringement.
Sites like Google tend to avoid liability because they hoover up the entire internet without discrimination. Even then, they are still running the risk of liability, but so far nobody has pushed a case far enough to figure it out. Clearly, Google stepping up their DMCA enforcement could be construed as an attempt to NOT end up there. It's my opinion that Google can see the legal headwind coming against some parts of their business models, and they want to be the good citizen long before it's mandated.
I think that most of the arguments get back to intent. What is the intent of the site operator, and what is the result. This case is a good example where the intent and the result were pretty obvious, and a plea bargain is probably the best that this guy could hope for. Mike (and co.) may not like it, but it's pretty obvious, even if you have to squint through the kool-aid dispenser.
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Qu
The law imputes the intent to cause the natural consequences of its action. Providing a link to infringing material naturally causes infringement to occur by those who click on the link. So one who knowingly provides a link to infringing material is liable for infringement.
Linking websites like the one at issue here are liable for the infringement that occurs via the links provided. Quiroa can't claim to not have knowledge (i.e., intent) like Google can with its search results. He knew the links he provided were for infringement, so he's responsible for the infringement that occurs using the links.
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I know I'm late with all of this, but I'm back in college now. However, I'll try to address the cases you brought up.
Live Nation Motor Sports, Inc. v. Davis
This was a motion for preliminary injunction, not a ruling on the merits; all that was necessary was a likelihood of success. Also, it was issued by a district court, not a circuit court; it's not even binding on other districts - much less the entire circuit. (Though, obviously, the circuit court could find it relevant.)
Since that injunction, linking has been held not to be infringing at the Circuit level, in multiple Circuits.
Kelly v. Arriba Soft
You're referring to a case that was withdrawn, as you said. But to say it was only "for procedural reasons" is not quite accurate.
That case was explicitly discussed - and completely shredded - in Perfect 10 v. Google. The court's description of the case is entirely apropos:
That case also cited a huge number of other cases that said, explicitly, that linking cannot be direct infringement:
they are also applicable where the transmission is capable of reaching different recipients at different times...
A link (including an embed) is simply not a "transmission." This is made abundantly clear in the MyVidster case:
You are saying that one who violates the "to do" is a direct infringer, but one who only violates the "to authorize" is an aider and abettor.
Except merely linking to a performance isn't "authorizing" that performance. The linker does not control what is or is not on the third-party site that streams the content. He has no ability to "authorize" anything.
Besides, "authorizing" the performance only gives rise to contributory infringement, as the Congressional record makes clear: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."
Since it's streaming, only the public performance right is implicated. I think we agree on that.
We do. Here, I'd just like to point out that this is a criminal case, and infringing on the public performance right cannot be anything more than a misdemeanor - even if there are multiple offenses. No felonies could even possibly have been committed.
That's assuming direct infringement on the public performance right. There is no "contributory infringement" in criminal law; there could only be "aiding and abetting" of the direct infringement. It's doubtful that merely providing a link would raise to the level of aiding and abetting, but even if it would, it would be aiding and abetting a misdemeanor at worst.
Embedding a video to be streamed by others violates the public performance right. There is no doubt about that.
Indeed, there is no doubt. There's no doubt that merely linking to infringing content absolutely is not a direct infringement of the "public performance" right. ("Embedding" a video, legally speaking, is simply providing a link.)
The only question is whether it could be contributory infringement, or not any kind of infringement at all.
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This can't be possibly be correct. He's not an innocent host, true, because he's not actually hosting anything at all. So, if he's not hosting anything then logically he must be running a link site. That a link is presented as an embedded stream doesn't make it any less of a link.
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Since he only provided LINKS, and not the content, Google, Bing and Yahoo should also be held liable and arrested as he was, as they are guilty IN THE EXACT SAME MANNER as he is.
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According to Bob they do..
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Aside from the amusing use of CAPITAL LETTERS, let's address your point.
The guy running this site specifically, and with intention, linked directly to infringing content, with full knowledge of the infringement, did it on between 9 and 16 different websites, and did it for a profit.
Are you suggesting that his intentional acts are on par with acts of a bot cataloging the whole internet?
I know you are a silly sort a times RD, but you cannot be this silly.
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So what?
Seriously, why not focus the attention on the 9-16 sites that were actually engaging in direct infringement? They're not hard to find -- this guy is helpfully pointing to them.
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There isn't much wiggle room here.
I agree. He intentionally embedded links to videos hosted elsewhere so people could stream them. I think his conduct is a direct violation of the public performance right.
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Re: Asshat
You are an asshat. Was this guy's site dodgy? Hell yes. Was it criminal? No. You are right about no wiggle room. In order to be guilty of criminal copyright infringement, you have to first infringe on copyrighted material, not simply link to it. Being arrested in the US and held for 7 months without committing a crime and with no evidence of a crime is pretty damn serious.
The fact that judges are not "falling for" the law is equally outrageous. Guess what that says to people. If judges willfully ignore the law because they don't feel it's right, then why shouldn't the public ignore laws they don't feel are right?
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Re: Re: Asshat
Read the whole story, and pay attention. Then you won't be such an asshat next time.
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Governments doing the dirty work of special interests is a very bad sign. Come on, you US voters, hold Congress responsible. Do your duty.
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equality of justice
HOW about at the hearing you SWAP LAWYERS..
wouldnt this be an interesting concept for justice??
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Re: equality of justice
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My Lift
Southern Chin State.
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Public Defenders
I would guess that at least 50% of the people who get convicted/plea bargain with public defenders would be found not guilty if they had a decent attorney.
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