Justice Department Continues Handwaving To Avoid Facing Up To Its Questionable Behavior In Taking Down Megaupload
from the quick,-look-over-there! dept
We already wrote about the motions from Megaupload, the MPAA and Kyle Goodwin, concerning Goodwin's attempts to regain access to the backup files he uploaded to Megaupload. However, there is also the Justice Department's own filing, which deserves its own separate post.As we noted a little over a week ago, Goodwin, represented by the EFF, was using Goodwin's attempt to retrieve his data to also seek to unseal the seizure order that led to Megaupload's servers being taken. The Justice Department clearly does not want that, and you can see it by the way in which it hits back at Goodwin. It insists that Goodwin hasn't done nearly enough to prove that he actually has "property" hosted on those servers:
To date, Mr. Goodwin has failed to make such a showing – he has not shown that he has a cognizable, legal interest in property seized by the government, nor has he shown a deprivation of a property interest based on any government seizure.... The only facts submitted to the Court by Mr. Goodwin regarding his interest in the servers imaged by the government are in a declaration he submitted in support of Non-Party Carpathia Hosting’s Emergency Motion for a Protective Order where he states he used Megaupload’s service.... However, if mere use of the service was sufficient to create a legal ownership interest in servers leased by Megaupload from Carpathia, then there could be hundreds, if not hundreds of thousands, of “owners” of each and every single Carpathia server. Such a result is absurd. Cf. Board of Public Utility Comm’rs v. N.Y. Tel. Co., 271 U.S. 23, 32 (1923) (“Customers pay for the service, not for the property used to render it . . . . By paying bills for service they do not acquire any interest, legal or equitable, in the property used for their convenience[.]”).Talk about willfully misrepresenting Goodwin's position... Goodwin isn't claiming a property interest because he used the service, but because he uploaded his own content. He's not claiming a property interest in Megaupload, but just in the data he uploaded. Apparently the DOJ is trying out diversion techniques to hide from the real issue.
The DOJ then goes on to state, by footnote, that they believe that even if Goodwin's content was taken down by the government's actions, that's okay because he was probably infringing anyway:
Based on the government’s review of Mr. Goodwin’s website, ohiosportsnet.tv, the list of files uploaded by a Megaupload user using the account name “ohiosportsnet,” and the MD5 hash values of those files, it is not clear that Mr. Goodwin or his company owns the rights to all the data that he (or others using the “ohiosportsnet” account) uploaded to Megaupload. Numerous videos produced by Mr. Goodwin have as their soundtracks recordings of popular copyrighted music. Many videos on his website begin with a statement describing the copyrighted music and including a disclaimer such as “we don’t own the rights.” In addition, the “ohiosportsnet” account at Megaupload had uploaded numerous music files, including music files with MD5 values that matched the hash values of pirated versions of popular music. Even assuming Mr. Goodwin has not contracted his rights to any data uploaded to Megaupload away, the extent and nature of those rights may vary file to file.Indeed, the nature of the rights may, in fact, vary file to file. And that's true of everything hosted on Megaupload... or any other server online. And yet, the DOJ's own actions were to take down the whole damn thing, ignoring the fact that there was plenty of legitimate and non-infringing content there. Yet now it wants to parse carefully about how each file may have different rights? Really?
Furthermore, as the EFF has pointed out in an interview with Tim Lee at Ars Technica, the DOJ's admission that they specifically looked up Goodwin's Megaupload account raises other serious questions about the DOJ abusing its powers:
But Samuels says it's the government who has some explaining to do. "The government's approach should terrify any user or provider of cloud computer services," Samuels told Ars by e-mail. "The government apparently searched through the data it seized for one purpose, in order to use it against someone who was hurt by its actions but who is plainly not the target of any criminal investigation, much less the one against Megaupload."From there, the DOJ continues its sleight of hand tricks, by claiming that if Goodwin has any issue it's with Carpathia (the hosting company) or Megaupload, since his contracts are limited to them:
Samuels told us that the government's response to Goodwin's petition demonstrates "that if users try to get their property back, the government won't hesitate to comb through it to try to find an argument to use against them."
Any ownership interest by Mr. Goodwin in that data would be limited by at least two separate agreements: (1) the contract between Carpathia and Megaupload regarding Megaupload’s use of Carpathia servers; and, more specifically, (2) the written agreement between Megaupload and Mr. Goodwin regarding use of Megaupload’s service. Those contracts not only bind Mr. Goodwin’s use of Megaupload’s service and Carpathia’s servers, they also likely limit any property interest he may have in the data stored on Carpathia’s property.This conveniently ignores that the DOJ ran roughshod over any agreements and just took the whole damn thing down, and then told Carpathia to delete all the evidence. It would seem that those actions have some bearing on the legal proceedings of the guy who'd just like his data back.
Basically, the government, as it's known to do, is playing hardball here. It doesn't want its own actions looked at closely, so it's challenging Goodwin's credibility while insisting that if anything does go forward, it's focused very very narrowly on Goodwin's specific situation, rather than the government's giddy bull-in-a-china-shop routine that created this mess in the first place.
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Filed Under: doj, kyle goodwin, takedown
Companies: megaupload
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I think Megaupload case should be dismissed because the US Govt failed to obey New Zeland court orders so they are probably trying to delay the hearings.
It's amusing how they keep shooting their own feet.
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Kim Dotcom is not going away and is going to host his new service at me.ga
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Re:
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Take note
The government's actions here prove that they will go to drastic lengths to prove you've done "something" wrong, and then trample on your rights accordingly.
I always love the authorities stating that ignorance of the laws is no defense. But in these days of thousand page laws that or representatives don't even read, how can we be expected to really "know" the law? It all becomes an excuse to fish for any reason to exert control over the people.
Our founding fathers believed that is was more benefical to let some of the guilty go free than to risk punishing innocent people.
Our current government now believes that no one can be innocent....
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To Be Consistent
I don't think, however, that this is the kind of argument that an MPAA/RIAA-controlled justice department would like to have on the books.
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Re: Take note
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That it's impossible for such a thing to exist is just something they'd like you to overlook.
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Re: To Be Consistent
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Re: Take note
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Re: To Be Consistent
I disagree with you about data not being valuable property, but I have to agree with that last part. It's beyond bizarre for the DOJ to claim in an infringement case that content is not property.
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Re: Re: Take note
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Re: Re: To Be Consistent
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Objection!
As mythbusters have shown on one of their episodes, a bull, or even multiple bulls place in a (faux)china shop is actually very careful not to break anything.
As such, comparing a bull, who is clearly able to act in a manner that minimizes damage to it's surrounding, to the DoiJ, who clearly lacks this ability, is a slight on the good name and reputations of bulls everywhere.
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Content IS property: but data on any particular computer is not.
You've said over and over that uploading. "file-sharing", doesn't harm anyone because they still have their data.
But now this knucklehead allegedly can't get his data and suddenly you and EFF claim he's got a property right in it.
And yet again, if he didn't back it up locally, TOUGH! He can't claim a loss if his file-host went down for any other reason, dang it. Many HAVE actually lost their work of years when a file-host made changes, and it's just plain gone.
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Re: Content IS property: but data on any particular computer is not.
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Re: Re: Take note
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Re: Content IS property: but data on any particular computer is not.
No, it is you who has failed to understand them, which is par for the course.
"You've said over and over that uploading. "file-sharing", doesn't harm anyone because they still have their data."
Because in those cases, that's true. there are thousands or millions of copies of those works. Nothing has been lost except for a "potential sale", which often doesn't exist. They can still sell millions of DVDs if they want, sometimes to the same person who pirated.
"But now this knucklehead allegedly can't get his data and suddenly you and EFF claim he's got a property right in it."
Because, they have the *only copy* of the work. Are you so obtuse as to not see the slight difference between seizing the only existing copy of a work and taking one of billions? Sadly, you probably are.
"And yet again, if he didn't back it up locally, TOUGH! He can't claim a loss if his file-host went down for any other reason, dang it. Many HAVE actually lost their work of years when a file-host made changes, and it's just plain gone."
Can we apply that to the **AAs you obsessively defend, or does that only matter when someone not on their payroll loses something?
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Category error
Julian Sanchez @normative:
_Watch for phrases like "infringing files" in Megaupload coverage. It's a category error. Works are copyrighted. People infringe._
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Re:
You have nothing to fear if you have something to hide.
The above two statements do not contradict each other: fear is premised on uncertainty, so for you to experience fear, we make sure that you are utterly confused about the stuff you own.
Your government.
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Re: Re: Re: To Be Consistent
I'm sorry to say it but despite the massive economic upheavel a total collapse of the US is likely to cause for those in the near vacinity... it needs to happen. The US needs to bow out while it still has a sliver of dignity left and rebuild itself...
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Re: Category error
That's why placing the onus on the service provider to filter files is never going to work properly - they're not privy to much of this information.
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Re: Re: To Be Consistent
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Re: Content IS property: but data on any particular computer is not.
Lol. Coming from you that's hilarious. You know nothing of Goodwin's case, as has been evident for some time now, yet you continue to state your opinion as fact regarding the issues at hand.
"You've said over and over that uploading. "file-sharing", doesn't harm anyone because they still have their data."
No, what has been stated is that file sharing is NOT theft because nothing has been taken, something additional has been created. Namely, a file that is a copy of the original. There's an addition.
What has also been stated is that it doesn't harm anyone because there's no way to determine with any reasonable amount of accuracy whether or not a legitimate loss has taken place.
"But now this knucklehead allegedly can't get his data and suddenly you and EFF claim he's got a property right in it."
No, what is being stated is that Goodwin no longer has access to his files, he would like to get access to said files.
For those in the class who are slower than others, namely YOU, what happened was that Goodwin kept copies of his files on Megaupload, in addition to locally storing them on his hard drive. Unfortunately, as does happen, his hard drive crashed and all the data was permanently lost locally. His only copies were on Megaupload, located on the servers that were seized/taken offline by the DOJ.
To summarize, the ONLY copies of his files are in the hands of the DOJ. Well Carpathia actually, but the DOJ is refusing to let him get his files back for various reasons, most of which the courts are saying sound like bullsh*t.
"And yet again, if he didn't back it up locally, TOUGH!"
See, again, you know absolutely nothing about the case and yet you comment as if you do.
He had local copies, they are now gone. Hard drive crash. It happens. Is it "TOUGH" in the way you mean it to be? No, it sucks. He did prepare properly though, cloud copies and locally stored copies. Unfortunately, his cloud copies are now being kept from him.
"He can't claim a loss if his file-host went down for any other reason, dang it."
Actually, he can. You know little about data or about the law. But he is legally entitled to the rightful return of his property. That's pretty much a given to anyone with a clue.
"Many HAVE actually lost their work of years when a file-host made changes, and it's just plain gone."
This has little to do with the situation that's occurred. And no, sorry to say, when a file host makes changes, the majority of the time, users files are NOT actually lost.
Where you pulled that from I haven't the foggiest, but it's got no basis in reality.
Seriously, OotB, get a clue and update yourself on what's going on before you come here spewing your nonsense. It'll make you look less like a fool/troll. Not that it matters, as you've already admitted you are exactly that.
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Goodwin ignored the illegal infringing content on Megaupload.
BOOHOO, PIRATES! I just hope that DOJ learns better procedures for the next (hint, hint) and is ready for scurrilous bogus attacks from the EFF.
[By the way, I'm with the DOJ on this only because they align with me, not the reverse. Megaupload was getting money from content it did not produce, which is immoral, unethical grifting, and certainly illegal at commercial scale.]
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Re: Category error
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If indeed Mr Goodwins data was copyright infringement and not his files say the DOJ then they must have accessed his account to read the data to find out what they claim and state. Either the DOJ have read the data in his account or they are lying!
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Re: Content IS property: but data on any particular computer is not.
You've said over and over that uploading. "file-sharing", doesn't harm anyone because they still have their data.
Goodwin was using Mega as a data backup and for sharing files with his employees and his physical drive holding his other copies failed around the same time as the seizures. He wasn't using Mega to infringe.
But now this knucklehead allegedly can't get his data and suddenly you and EFF claim he's got a property right in it.
Well of course he does - he is the rights holder of the content he created. Are you disputing he owns the rights to the video he created?
And yet again, if he didn't back it up locally, TOUGH! He can't claim a loss if his file-host went down for any other reason, dang it. Many HAVE actually lost their work of years when a file-host made changes, and it's just plain gone.
This is true. The part you conveniently leave out is that this is a result of the actions United States government and not some private entity. They are *supposed* to minimize the impact on innocent parties, especially when it involves any form of speech. The USG clearly didn't do that here.
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Re: To Be Consistent
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Re: Goodwin ignored the illegal infringing content on Megaupload.
Has Dotcom been found guilty of such a thing in a court case trial? I must have missed something. This is just something that the DOJ are stating but so far has not been proved in a court case trial and Dotcom has not been found guilty of such.
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Re: Re: Category error
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Re: Goodwin ignored the illegal infringing content on Megaupload.
Me too. Like not throwing the baby out with the bathwater.
...and is ready for scurrilous bogus attacks from the EFF.
Wow. Scurrilous bogus attacks? Really?
Apparently, supporting and defending the public's rights in our digital age is some sort of joke to you. I suppose you think the ACLU is just a bunch of hilarious hippie lovers too.
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Re: Content IS property: but data on any particular computer is not.
Adding CAPITAL letters WILL NOT make it LOOK better.
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That's funny, because I thought it was Imaginary Property rights that got us in to this mess in the first place.
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Re: Goodwin ignored the illegal infringing content on Megaupload.
That's as far as any intelligent person should need to read. You've already reached a judgement against him, even though he himself doesn't even have access to the files in question, and you attack instead of discuss the specifics.
When you're ready to discuss the truth rather that launch childish attacks and lies, maybe you'll get somewhere.
"You even complain that DOJ can read the data!"
Correction: DOJ can read it, EFF can not. Are you really saying there's no problem in the fairness of a court case when only the prosecution has access to the evidence?
"Megaupload was getting money from content it did not produce"
As does every site that includes some user interaction, commenting or uploading. I suggest you stop using them so you stop contributing to this - starting with this site.
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Re: Re: To Be Consistent
If I own a pencil and a piece of paper, I should not be restricted from using the pencil on that piece of paper merely because someone else used their own pencil on their own piece of paper in a similar fashion in the past. To attempt to give someone a property right on "content" is to attempt to give them a property right in the real, physical goods, since they then become the deciders of how and when I can use that physical property.
The institution of copyright itself is the real theft in society, and not the violation of copyright.
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Re: Goodwin ignored the illegal infringing content on Megaupload.
I hope you into accusers and judges that believe in the probability that you did something while denying you the right of looking at the evidence to confirm that probability. And I hope you are screwed royally by those 'probabilities'.
Moron.
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Re: Goodwin ignored the illegal infringing content on Megaupload.
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Re: Goodwin ignored the illegal infringing content on Megaupload.
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And why aren't you "re-routing around the damage"?
I'm intentionally giving you a lead in tip to:
http://www.theinquirer.net/inquirer/news/2221552/kim-dotcom-introduces-mega-to-the-world
H ow long does it take Techdirt monkeys to re-write? You should be all over that, been up for hours, besides days of prior notice for his new pirate site.
By the way, how long did it take you guys to recover from your shock at DOJ just plain seizing it? I totally don't follow Techdirt except when I visibly do.
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speaking of probability..
**AA scrutiny of his content is so far outside juristiction, justice itself, constitutional rights, and serious privacy violations; irrespective of what is contained in the account, that it just baffles the mind.
its no longer, do as i say, not as i do, its more like;
fuck you, and i will do whatever the fuck i want.
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Let's get this straight
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Re: Re: Re: To Be Consistent
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Re: And why aren't you "re-routing around the damage"?
Lets see how long the new Mega holds out to the US. Lets hope the new Mega holds out for at least 10 years . If The Pirate Bay can hold out for 10 years lets hope the new Mega lasts as long.
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Re: And why aren't you "re-routing around the damage"?
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Re: Let's get this straight
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Re: Re: Category error
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Re: Re: Re: Take note
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Re: Re: Re: Re: To Be Consistent
In all of human history, two things hold true about global empires: they all fall, and they never do so with even a sliver of dignity intact.
The US is no different.
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The DOJ was is afraid
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Re: Re: Take note
If they really did that, the country might not be in the awful mess it's in now. Even that quote you used was said in mercy. At the time, the religious leaders of the day had caught a woman in the act of adultery and brought her before Jesus. The prescribed punishment for such an act under their laws was death by stoning. They wanted to find some way to put Jesus into a position where he would say something, anything that they could use to discredit him. If he said that she was free to go, they could have used that as an example that he didn't follow the(ir) religious laws of the day. If he said to stone her, they probably would have found some way to twist that against him as well.
Instead, he said "Let any one of you who is without sin be the first to throw a stone at her". At that, all of the men gradually walked away. In the end, it was only Jesus and the woman. He actually was without sin, according to the Bible, yet he offered not condemnation, but mercy.
http://www.biblegateway.com/passage/?search=John+8&version=NIV
The Bible does state that everyone is a sinner, but Jesus's goal is not punishment, but instead mercy, forgiveness, and reconciliation.
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But again according to the logic being displayed here over not returning the files to the innocent, the DoJ is claiming that collateral damage to those losing those copies is ok. Just as well say, "Gee, we own the whole apartment block because we busted one renter that had drugs". Doesn't make any sense.
It is my hope that the judge makes the MPAA pay Carpathia for the cost of warehousing the servers while all this is settled.
Seems to me that the New Zealand cops had a problem with encryption of the files taken from Kim's residence. Kim was not willing to give the password to open them unless he got a copy for forming up his defense. So how is it that the US is now able to open up these files and look at them? If they did, didn't they break the law in the process of unlocking the digital key? Another hmmm moment of out many?
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Re: And why aren't you "re-routing around the damage"?
People who want a simple solution (and not as worried about remaining anonymous) are using newsgroups as new programs have popped up to simplify searching, downloading, and merging files.
Piracy hasn't stopped or slowed. Mega is re-routing by relocating to me.ga, changing servers, and getting the damage (read "USA") out of their pipeline.
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Evidence tampering
In other words, going by their track record on this case, I think we can all fully expect to see evidence tampering and planted evidence on the servers before this is all over.
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That's also why the "infringing content" part is so silly, seeing as how it relies solely on the MD5 hash.
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Re: Goodwin ignored the illegal infringing content on Megaupload.
Yeah, so do DropBox and Amazon. Is Amazon D3 grifting? No? Then what's the difference? Cloud backup is cloud backup.
Or are gun manufacturers guilty because someone uses one to commit a crime? Are silverware manufacturers responsible for the obesity of those who use forks to eat? How many people have to do an illegal thing with something legal before the owner/manufacturer becomes guilty?
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Re:
DOJ You are the Criminals and you will not win out.
Even as you keep talking your BS KD is bringing MU back and it will be encrypted, no logs kept, and Servers all in Nations your filthy hands will never touch.
Just keep digging your grave DOJ.There are Millions of People here and Overseas which is watching you and paying attention to your breaking of our own Laws and Foundation.
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also curious as to the response was from Goodwin and/or hid representatives from the EFF over what the DoJ has done and what they have accused him of.
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Re: Content IS property: but data on any particular computer is not.
And yet again, I and others will correct you on this point, because you're either too stupid to understand, or you're just another troll spouting things you know are untrue. MegaUpload was his back-up, and when his hard drive crashed he found that his back-up had been taken down by a government agency who seem to be be completely bought and paid for by the entertainment industry.
He's not a knucklehead, he's unlucky.
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Shareholders. What an absurd thought.
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Re: Re: Re: Take note
While your conclusions are correct and a much better way to look at quotes like this, the Bible does, in fact, say all are sinners:
"For all have sinned and fall short of the glory of God"
Still, the idea of focusing on forgiveness and mercy vs. condemnation and judgement is a much better way to look at things.
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> Goodwin's position... Goodwin isn't
> claiming a property interest because he
> used the service, but because he uploaded
> his own content.
Funny how content suddenly ceases to become property when it's inconvenient for the government/industry.
All this talk of 'stealing' and 'theft', and the moment someone accuses *them* of theft, they suddenly do a 180 and claim there's no property interest in data stored on servers.
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