Megaupload Tells Court That DOJ Deliberately Misled Court In Getting Warrant
from the more-problems dept
Lawyers for Megaupload have filed a motion with the court handling the US side of the prosecution against the company, arguing that the original warrants were defective due to blatant misrepresentations by the government. As you may recall, in the case involving Kyle Goodwin, a Megaupload user who is trying to get his data back, he had to ask the court to unseal the warrant the DOJ used to seize Megaupload because the government had kept it secret. While the Justice Department went ballistic trying to prevent this unsealing, the judge allowed it to happen. And it didn't take long to figure out why the DOJ preferred to keep it private because among a bunch of problems, was the big one: a key bit of evidence that the DOJ used against Megaupload to prove that it had "knowledge" of illegal activity on its servers existed because the government -- via service provider Carpathia -- had explicitly told Megaupload to hold onto certain data since it was a part of a criminal investigation.As Megaupload points out in this filing, it's particularly ridiculous that Megaupload was told to hold onto certain information as part of a criminal investigation -- to which it complied -- and then that very fact is being used against it, because it didn't delete the info. And, of course, the DOJ didn't explain the context in getting the warrant.
Megaupload is now arguing that the warrant and the seizure itself were defective and need to be overturned based on the fact that they were completely misleading on this bit evidence. In fact, the government specifically appears to have instructed Carpathia to tell Megaupload (1) to retain the files in question and (2) that Megaupload was not the subject of the investigation:This Court recently ordered the unsealing of the documents previously submitted by the United States to support taking down the Megaupload cloud storage site by seizing the domain name(s) --- such unsealing lays bare a crucial omission the Government made to the Court in the secret process. Specifically, the Government’s affidavits underpinning the warrants omitted critical, exculpatory information regarding whether, why and how Megaupload knew it was hosting criminally infringing files. The Government represented that, “[o]n or about June 24, 2010, members of the Mega Conspiracy were informed, pursuant to a criminal search warrant from the U.S. District Court for the Eastern District of Virginia, that thirty-nine infringing copies of copyrighted motion pictures were present on their leased servers at Carpathia Hosting, a hosting company headquartered in the Eastern District of Virginia,” and that, “[a]s of November 18, 2011, thirty-six of the thirty-nine infringing copies of copyrighted motion pictures were still being stored on servers controlled by the Mega Conspiracy,” after it was informed of the infringing content.... This snippet—which appears in each relevant affidavit and is the only direct, corroborated evidence the Government purports to offer as proof that Megaupload had requisite knowledge—suggests that Megaupload was warned of its potentially criminal complicity yet persisted in hosting the files without concern for their illegal content. The affidavits, in short, paint Megaupload as a brazen scofflaw.
The truth, as the Government well knows, is quite different. Megaupload had every reason to retain those files in good faith because the Government had sought and obtained Megaupload’s cooperation in retrieving the files and warned that alerting users to the existence of the warrant and the Government’s interest in the files could compromise the investigation. Carpathia informed Megaupload that the warrant was sealed, and that only Carpathia and Megaupload, not the users of the infringing files, were to know of its existence, and at the Government’s request provided Megaupload a copy of the sealing order. The Government selectively parsed its account so as to exclude critical facts that negate any notion that Megaupload had criminal mens rea to retain the infringing files. The Government deliberately neglected to apprise the Court that:
- Megaupload received the June 24, 2010 warrant in the course of cooperating with a Government investigation;
- Megaupload was informed of the June 24, 2010 warrant by its vendor, Carpathia Hosting (“Carpathia”), with the Government’s consent and for the express purpose of obtaining Megaupload’s voluntary assistance with executing the warrant;
- The Government declined to communicate directly with Megaupload about the warrant, instead deputizing Carpathia to communicate on its behalf;
- Carpathia directed Megaupload not to open “EM7 tickets” on the infringing files—which would have alerted a larger number of people to the existence of the warrant and jeopardized the secrecy of the investigation—“[b]ecause of the Government’s seal on the warrant,” asking that Megaupload instead deal directly with a single person at Carpathia;
- Megaupload’s preservation of the status quo, particularly by not taking down or otherwise disturbing the files identified in the June 24, 2010 warrant, was faithful to the Government’s express desire, reflected by the Magistrate Judge’s order sealing the warrant (provided to Megaupload by Carpathia at the Government’s request) and by Carpathia’s instructions on the Government’s behalf, for Megaupload to ensure that evidence would remain preserved and that the target users would remain unaware of the investigation; and
- Consistent with its stated desire that the warrant and investigation remain confidential so as not to tip off the target users, the Government—neither directly nor through Carpathia—ever requested that Megaupload take down the files identified in the June 24, 2010 warrant.
Nowhere did the Government tell this Court that its June 24, 2010 warrant had been calculated to enlist good-faith cooperation with a criminal investigation, while preserving the secrecy thereof. Nowhere did the Government tell this Court that the Government had sought Megaupload's voluntary assistance in executing the warrant. Nowhere did the Government tell this Court that Carpathia had assured Megaupload, in the interests of its requested cooperation, that there was no basis to believe that Megaupload was a target. Nowhere did the Government tell this Court that Megaupload had in fact cooperated precisely as requested. Most importantly and most troublingly, nowhere did the Government tell this Court that Megaupload had been informed by Carpathia, acting on behalf of the Government and heeding the Government's insistence upon sealing, that the secrecy of the warrant and the Government's investigation must be preserved to avoid destruction of evidence and notification of the targeted users. Nor did the Government inform this Court that the sealing order it had obtained and furnished Carpathia to provide to Megaupload likewise required secrecy and expressly specified that [redacted ]. In sum, nowhere did the Government tell this Court that Megaupload had done exactly what the Government had asked it to do--execute a search warrant without alerting the ostensible targets to the existence of an investigation. The Government's contention to this Court that Megaupload's preservation of the status quo was evidence of criminal intent is false, and deliberately so.Attached is an exhibit in which Carpathia explicitly says it told the DOJ that Megaupload was happy to cooperate with the US government on such investigations.
Given its responses so far, I fully expect the government to go ballistic over this filing as well, but with each filing, their case looks weaker and weaker. As we've said in the past, it really does seem like DOJ agents were taken in by Hollywood's story about how Megaupload was pure evil and that was obvious to anyone -- and, as such, the DOJ could take various shortcuts in bringing the site and Kim Dotcom down. To be honest, what's still incredible to me about all of this is that, prior to the takedown, I probably would have agreed that Megaupload was likely a "bad player" in the space and that Dotcom had a reputation of thumbing his nose at the law. But as more and more details have become clear, it's looking more and more like the DOJ cut corners so badly that it's entire case may be at risk. If true, this will be a massive embarrassment for anyone at the DOJ associated with the case.
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Filed Under: doj, misleading, warrant
Companies: megaupload
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Even if the DoJ should "lose" this case, the damage has been done. Millions were lost, both data and money, and there's nothing MU can do to get any of it back.
The executives of the MPAA and RIAA, to name two of many, should be personally sued to recoup those millions.
If justice is indeed blind, she'll right this wrong. Though, I've a feeling her scales receive "campaign contributions" as well.
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Hopefully it sparks some heavy scrutiny on their activities (wishful thinking I know). If anything the best part is that it's raising more and more awareness to the madness, to how absurd copyright is, to how the US Govt is at the pockets of the big corporations and so on.
Awareness is key to start changing things.
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They got into a clusterfuck and there seems no easy way out of this shitestorm.
DOJ 0 x 1 Megaupload.
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Because I'm confused. The people who blew shit up in the name of a "holy war" are terrorists, sure. But what about those terrorists at home, who use money to leverage fear and uncertainty and destroy governmental credibility? Those are surely terrorists, as their sole purpose is to make money by any means necessary, including weakening governmental trust.
So, surely, all involved in this particular case will be jailed without trail for years.
OH, wait, this isn't a Magical Christmasland, this is reality. And it bytes.
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Re:
F#ck You MAFIAA ! Watched The Hobbit for free last night.
That being said I will spend my Wallet on the Local Art here and will save some bucks for cool Indie Non-MAFIAA Art but as far as MAFIAA goes I no longer care or have any need to ever go near you again.
You no longer really matter to me.Hope more folks join a real Boycott.
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Responsibility
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Re:
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Seriously!!!
Sadly if i was in his place i would do this but i would be making many demands , like having a certain politician publicly apologies for the case. And that Hollywood be punished somehow, and punished in a way that is open and everyone can see how serious the punishment is.
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The DOJ..
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The DOJ..
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Don't forget your required OOTB post
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But it's the law
Mega is/was definitely a haven for piracy, and yes that is clear to anyone who used the site.
But Mega was abiding by the law. The law grants protection for these services from the actions of their users and that's just how it is.
So all of the whining shills that wish to trumpet the law when it comes to piracy need to stand down and accept that services that can be used for piracy are PROTECTED by the LAW from the illegal actions of their users.
Otherwise gun manufacturers and telephone companies need to all be shut down immediately.
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Fast and Furious.
Gun Runner.
Megaupload.
Benghazi.
NDAA.
Bureaucratic rules with the force of law.
Laws that are not Constitutional.
Obama Care.
We live under a tyrannical government.
The people get it that's why they are buying so many guns.
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Re:
The Fiscal Cliff
9/11
Iraq War
Hurricane Katrina
Enron
the Recession
Megaupload
Copyright Laws that are not Constitutional.
Bureaucratic rules with the force of law.
We live under a tyrannical government.
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Re: But it's the law
As is RapidShare, and any other locker site.
It's up to the copyright holders to report problems (which RS and, until its shutdown, MU, complied with.) to the lockers.
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Re:
So I'll add to my reasoning here.
Since 1976, the government has been controlled by special interests. In regards to copyright, it's evident that they've used copyright to destroy their competition. The first segment was other businesses until it was consolidated in the 80s. Next came control of artists, directors, and what I'll deem "The creative class". By creating "work for hire" laws that favored businesses over people, the creative class was forced to work for Pennies on the dollar. And how could you get a message out that didn't support the status quo? Amateur radio is hampered by FTC regulations that favor the big boys. The same with broadband internet with the monopoly of AT&T and Verizon.
So in essence, the government has revolved around monopolies for the past four decades. But why?
Well, I keep harping about what the must powerful word in the English language is: incentive.
The MPAA has a strong incentive to use the government to maintain its monopoly and greatly bend the rules. Pirate sites make little money from maintaining archives of videos, but the less competition for the studios means more profits for them in their monopolized industries. If there were no internet, Universal would have control of its products and where it can make money through the same tactics of windowing, regionalization, and strong enforcement of the law that it bought and paid for with Hollywood subsidies.
This incentive has crippled our justice system the same way it has crippled our public domain. I don't think the result is just more regulation here. The entire system is rotten. Why do we need a system that allows for inequality of content sharing to be the norm?
At least to me, we've given corporate interests a strong incentive to make the public mere vessels for "stuff" rather than helpful creators of more content.
That is a damn travesty of what our Founding Fathers believed in allowing copyright monopolies for a limited time.
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Re:
I'm sorry but did you just call most high ranking government officials terrorists, because they are doing the best job destroying all credibility of the government.
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Re:
Gun Runner was Bush's idea first.
Megaupload was all Hollywood which controls both parties.
Benghazi was all conservatives who took away diplomatic funding for more guns in the military.
Obamacare is supposed to help all Americans get healthcare. You must hate people getting preventative care when the US is 37th in healthcare among developed nations. I guess humanity is not one thing taught in our schools anymore.
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Memo: How to troll the freetards and win the war.
- FUD: FUD everything you can. e.g. out_of_his_mind, Joe, Darryl are good examples to follow.
- Be disruptive go on tangents and don't try to hard to be logic.
- Preach our points as they were written in stone, never doubt the truthfulness of the word of the RIAA or MPAA are spin doctors are working hard to come up with credible although entirely bogus claims to be made.
- If anyone asks why say the law said so, never mind that the law was passed by less than honest means under very shady circumstances without input from opponents, heck we didn't even give them a chance to see it. Never mind that appeal to authority is a well known fallacy.
- Defend the DOJ pansies, they are dumb but we need to make due with what we got, and they need help or they will be slaughtered in the arena of public opinion.
Fallow it and you be a winner!
Catching! Winning!
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Re: Re:
You would allow the MAFIAA to infect your dog? I am going to have to place a call to the ASPCA!
I don't want the MAFIAA, or the government within 50 miles of me or my dog, let alone touching or licking any part. What, are you trying to bring on the Zompocalypse?
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Umm. Yeah. Ok. Whatever dude.
You are obviously of the "either you are with us or you are against us" line of thinking while the rest of us can intelligently discern that pointing out the Government's obvious missteps, miscarriages of justice and borderline abuses of power in this case have nothing whatsoever to do with which side of the copyright debate you may be on.
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how could it's case not be at risk? having been asked to help the government, agreeing to do so and having written evidence of agreeing to do so, how could anyone then be deemed as committing criminal activities? this whole escapade was a setup, orchestrated by the USA entertainment industries, authorised by a top government official and executed by the boss of a law enforcement agency as a personal favour to the industries. when this total mess is all sorted out, those responsible, whoever they may be and regardless of the positions they may hold, need to be exposed for what they are, absolute liars who cannot be trusted in any position, let alone one of national responsibility. there also needs to be serious amounts of compensation paid to all who were denied access to their files and a real overhaul and update of the copyright, sharing and patent laws!
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Re: Re:
Blaming the Republicans for all that? Blaming ANYBODY for a hurricane?
By the by.... the head of the Justice Department is Atty General Eric Holder, appointed by and is part of the Obama administration.
Kindly get an education and wait until you have something worth saying before fanning flames with this..... stuff.
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Re:
i'm guessing *that* is the more likely reaction...
*not* 'OMG we didn't realize we were screwing over the public and certain individuals for our own nefarious purposes. gee, thanks for pointing that out, citizen! we'll rectify that right away!'...
uhhhh, no, that ain't happenin'...
art guerrilla
aka ann archy
eof
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Re:
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Ain't Gonna Happen!
Second, make PACs, of any sort, and lobbying illegal. No one knows where the money comes from, large corporations, foreign governments, criminal organizations, Hollywood, who knows? I do know we don't need that cash running around Washington, or the state governments buying votes and influencing legislation and judicial decisions.
Third limit all donations to the state or national political parties, with a limit of $50 per year per person, tracked by the person's ID, and eliminate private donations to the individual candidates.
I know, it won't happen. Too much money already floating around to allow it. It sure would be nice, though.
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Re: Re:
You are the "Real Boycott"?
The real boycott comes from those of us who choose not to participate in the MPAA economy.
Watching the movie for free is not a boycott.
Not watching the movie is.
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Re:
Of course the article isn't at all about siding with pirates but about how the prosecution of Megaupload is being done over files that they were specifically asked to not delete by the government because they were needed as evidence for other prosecutions.
But of course you obviously missed all that in your rush to write about how Mike is siding with pirates. I'm sure all you saw was the word "Megaupload" in the headline and saw that the article was written by Mike and said to yourself, "Megaupload + Mike Masnick = Mike loves piracy". Which couldn't be further from the truth, as Mike has countless times pointed out, in the comments and in articles, that copyright infringement is against the law and he does not condone it in any way, shape or form. BUT he does understand why it happens to a degree and he also realizes that current methods of enforcement are failing and that giving people what they want would do wonders to decrease (but not stop) piracy/copyright infringement.
But why let a thing like that get in the way of your soon to be reported post, am I right?
Seriously though, you guys are hilarious. You'd rather seize companies and their assets and close down websites through any means necessary (including breaking the pretty much all the laws revolving around due process) than actually giving people what they want which would do more to lower piracy than anything else. You and your kind are worse than the pirates. They might break one law, which doesn't deserve much respect. You'll break tens, hundreds, thousands just to go after them. And much more significant laws at that. The ends DO NOT justify the means.
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Re: Responsibility
Which means the government that wrote the law is going to enforce it. Save your blood pressure and accept that.
From the above article:
a key bit of evidence that the DOJ used against Megaupload to prove that it had "knowledge" of illegal activity on its servers existed because the government -- via service provider Carpathia -- had explicitly told Megaupload to hold onto certain data since it was a part of a criminal investigation.
And? So?
Cooperating with the government on that request doesn't change the fact that the infringing material was there before the gov requested it stay. Along with untold other examples.
Pretending that Megaupload's business model wasn't based around infringement is simply a non-starter. No one is naive about these things anymore.
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Re: Re: Responsibility
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Re: But it's the law
Neither government nor big business wants to chase after hundreds of millions of actual criminals (and I use the word in the loosest sense), when they can simply go after the 100 big service providers.
The law may in most countries still hold the individual responsible, and the service provider innocent, but that's merely semantics... Megaupload, Piratebay, SurfTheChannel -pick a country and it's the same all over- screw the law; go after the providers for "conspiracy!"
Mark my words, it's just a matter of time before the letter of the law says a provider is directly responsible for all of the actions of the users, and even search engines will be criminally responsible for automatically finding and indexing illegal content. It's not going to help anyone, or stop "piracy", but it is going to happen none the less.
They really do have their heads that far up their bums. It's inevitable.
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The DOJ should have told them that they were being investigated? They should have told them to delete the eveidence that was going to be used against them?
Seriously?
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Re:
Seriously?"
You're looking at it wrong. Megaupload was going to delete the files as soon as they were made aware they were there. They were TOLD to NOT delete the files, as they were needed as evidence in an investigation. Then the DOJ turns around and investigates Megaupload for NOT deleting the files THEY told them not to delete.
It's easy to see how you might have missed that.
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Re: Re: Re: Responsibility
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Re:
Option 1: Telling them
1) Send the DMCA takedown notice to remove illegal content.
2) Megaupload complies.
3 There's no case.
Option 2: Not telling them
1) Flat out lie to Megaupload: Ask them to assist in a criminal investigation by NOT removing illegal content.
2) Flat out lie to the courts: Get a warrant on the accusation of hosting the illegal content you asked them NOT to delete.
3) ...
4) Profit!
There's words for option 2. "Legal" is not among them.
There was an option 3: investigate Megaupload without breaking the law, fabricating evidence and lying to the courts. That's the issue.
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Re: Re:
Im sick of both of you for turning every little thing into the R Vs D / Mines bigger than yours...
You both support the Big G party, its just a matter of which flavor you prefer...
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Re: Re: Re:
However, what you can do, is blame the government for their poor responses to said hurricane.
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Re: Ain't Gonna Happen!
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Re: Re: Re:
If you choose by your definition to truly boycott, that's fine, but in my opinion it only affects your own peace of mind. You become a non-entity to the entertainment industry and will have little to no effect on the outcome.
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Re: Re: Responsibility
Your world must be a sad one because if you are talking about Earth then it's quite a few hundred years too much. Go read about it sonny, copyright is fairly new.
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Re: Re: Responsibility
And pretending that millions of users weren't using Megaupload for legally owned files is simply a non-starter. Only people like you are naive about these things anymore.
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Re: The DOJ..
I would guess they have jobs waiting for them when they get back to the private sector.
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Re: Re: But it's the law
Yep, regular copyright law vs. file-sharing copyright law.
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who is the criminal and who is the victim...
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Re: Re: Re:
Personally, I would like a better proportional government. But that requires a national movement.
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Re: Re: Re:
So in fact gorehound would seem to be making a similar statement by watching a movie without paying for it.
Simply choosing to 'not drink tea' would not have had the same profound effect as the actions taken some 240 years ago.
Watching a movie for free is a form of boycott, in factone could argue that it is a more effective means since it can easily be counted as lost $$$$. When you refuse to even participate you can no longer be counted as a lost sale, you simply disappear.
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Re:
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Re: Re: Responsibility
The items the DOJ tagged Mega with having knowledge of and doing nothing about are the ones they specifically told Mega to hold onto. This is the issue.
DOJ: "Here's a court order saying don't touch X files."
A few months later...
DOJ: "You didn't remove X files, you're a felon as you knew they were infringing."
Good ole damned if you do, damned if you don't...
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Yes, a part of the government should go ballistic
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Re: Re: Responsibility
Cooperating with the government on that request doesn't change the fact that the infringing material was there before the gov requested it stay. Along with untold other examples.
Megaupload did not know the files were there until they were informed by the DOJ (via Carpathia) that the files existed on their servers and were in fact infringing. Megaupload did not put the files there, one of their customers did. Now if the rightsholders had informed MU that those files were infringing and requested them removed through a valid DMCA notice, MU's track record on compliance is well established, and they would have removed them.
This. Is. Not. What. Happened.
The DOJ identified the files as infringing, informed MU of their existence, and then told them (read this next part carefully) NOT TO REMOVE THEM OR TAKE ANY FURTHER ACTION!!!
Are you actually trying to argue that MU should be held liable as a 3rd party service provider for the actions of it's users that they were unaware of? Again, it must be a very interesting reality you live in... If you have the time please post directions on how to get there so the rest of us can avoid it.
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Re:
So the government tells them the files are infringing, so now MU knows about it. Then the government tells them to keep them unaltered and allow people to continue to access them.
The government then turns around and says look, they have infringing files that they know about and they have not taken then down or blocked access. Of course they forget to mention that MU knows they are infringing because the doj told them about them and asked them to keep them.
Do you not see how sneaky and illegal what the doj did is?
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Re: Re:
Sandy Relief
Violence Against Women Act
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Re: Re: Re: Responsibility
Now, you can say that they honored DMCA requests, but unless they had a functioning repeat-infringer policy, then it is no surprise at all that the DOJ went after them.
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Re: Re: Responsibility
Their is ample evidence that Hollywood is influencing government enforcement of copyright law. It would be extremely disingenuous to claim otherwise.
"Which means the government that wrote the law is going to enforce it."
Their is also ample evidence that Hollywood influenced the writing of copyright law. It would be extremely disingenuous to claim otherwise.
"Cooperating with the government on that request doesn't change the fact that the infringing material was there before the gov requested it stay."
And? So? That doesn't make MU criminally liable, as well you know. The fact that you won't admit that MU was simply double-crossed by the DoJ, something plainly obviously to anyone with half a brain, clearly points you you having a vested interest in MU's demise. Care to share that vested interest with us?
"Pretending that Megaupload's business model wasn't based around infringement is simply a non-starter. No one is naive about these things anymore."
Pretending that Megaupload's users aren't taking advantage of now-common and ubiquitous technology and communication tools to route around the content industry's outdated business model is simply a non-starter. No one is naive about that anymore.
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Re: Re: Re: Re: Responsibility
Really? The government should have the right to seize assets and prosecute for not doing something that's totally beyond what the law requires? You should definitely put that on the cover letter for your job application to the MPAA and their puppet branch of the DOJ. You're definitely their brand of crazy.
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Re: Re: Re: Re: Responsibility
Actually no, just because they used the servers of a company (Carpathia) located in the U.S. DOES NOT make them obligated to follow DMCA law.
In point of fact, Megaupload followed DMCA procedure/law while not even being obligated to.
"Now, you can say that they honored DMCA requests, but unless they had a functioning repeat-infringer policy, then it is no surprise at all that the DOJ went after them."
What's interesting is that there is no "repeat-infringer policy" on the books, is there? I'm pretty sure DMCA safe harbor status basically says as long as they follow DMCA procedure (meaning they remove infringing works when made aware of it) they are granted safe harbor status.
So yeah, it DOES come as a surprise that the DOJ went after them, especially if you're going to go with what you wrote in saying they are required to have a "functioning repeat-infringer policy". More so considering no such policy is required.
As for "you can say that they honored DMCA requests", well it can be said because they did. You wrote that in a manner basically saying you do not believe they did, but which the facts and evidence have shown they did.
But the long and short of it is that "Megaupload got pinched" because the copyright industries went crying to mommy and daddy to stop the big bad boogieman from letting the other kids take their stuff. Failing to note that the boogieman cannot control what others do or do not do, and cannot police something that they are not clearly made aware of. Saying infringement is taking place is like saying people somewhere are doing drugs right now. No sh*t, Sherlock. But those who have to deal with it must first know where in order to decide how to deal with it.
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Re: Re: Re: Re: Responsibility
Well that's the DOJ's theory at least. Not so sure that really flies since the government can't legally serve a company that doesn't have a US address to mail to.
Now, you can say that they honored DMCA requests, but unless they had a functioning repeat-infringer policy, then it is no surprise at all that the DOJ went after them.
Dunno about that one. According to this Ars Technica article MegaUpload had an "abuse tool" and complied with DMCA notices and had a registered DMCA agent.
http://arstechnica.com/tech-policy/2012/01/why-the-feds-smashed-megaupload/
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There is according to EFF:
http://www.eff.org/deeplinks/2011/01/dmca-copyright-policies-staying-safe-harbors-while
M ost of it appears to remain unclear and untested though.
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If copyright infringement is occurring on your site and you do not have a repeat-infringer policy, then you lose any protection the DMCA provides you. And willful ignorance of what is happening on your site gets you laughed out of court and into jail.
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And there is nothing outdated about selling something that is highly desired. Sorry.
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The DOJ don't let little things like that stop them, though.
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Re: Um, no, It's your claims that are ridiculous...
Can you say entrapment?
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If only it were that simple. A lot of piracy is due to copyright holders refusing to sell their content in foreign markets.
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And if your comment about content producers was actually true, then there wouldn't be any piracy in the US.
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Do you have the section where this repeat offender requirement exists? The DMCA is kind of a big thing to go hunting through.
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"(i) Conditions for Eligibility.—
(1) Accommodation of technology. — The limitations on liability established by this section shall apply to a service provider only if the service provider —
(A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider's system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers; and
(B) accommodates and does not interfere with standard technical measures."
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This is the primary reason why no one in a civil situation as a plaintiff wants to test this. It would mean that a court would have to be fully involved throughout EVERY alleged infringement under the DMCA as well.
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The ONLY repeat infringement system that needs to be in placed under the DMCA is one in which the court has found the infringer (ie: uploader and therefore first party respondent) has in fact infringed. Before then it's just hearsay and allegations of some sort of maybe unlawful activity by a maybe wronged party.
Otherwise I and others could claim you are a repeat idiot without actual evidential proof that you are an idiot in the first place.. oh wait
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This serves two purposes. One the US Authority then cannot entrap the non US company and two shows the US Authority that they can basically fuck off and mind there own business from now on. Or better yet get a valid Jurisdictional order compelling what they want under comity.
The chilling effect of what the DoJ has done is going to ripple through the ITC industry, and not for the benefit of the USA.
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Consequences
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NEWS FLASH THEY ARE FEEDING US A SHIT SANDWICH.
I'd like to hope someday people might care more about the fucking sandwich they are shoving in our mouths rather than bickering about which side we should blame for it.
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They did number 2.
You missed option 1.5, which was demand more access to remove files and get it on a silver platter and decide it still wasn't enough even after being caught abusing the special access.
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As we rushed to the fiscal cliff, they managed to make sure Holllywood got more cash.
The country is going to hell in a handbasket, we can't afford basic services... but what the hell give Hollywood handouts.
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We need a grassroots movement to change our government. We have a number of issues that need to be tackled:
Proportional representation
Electoral college reform
Incentives for business
Incentives for people to work
Women's rights
Educational reform
That reform is something that can be done, at least partially, with one party in charge. It was done in 1932.
Right now, the fact is that both parties are pretty bad, playing a game of austerity that is going to hurt the country.
I predict that when Social Security is finally cut, you will have a massive uprising similar to Hoovervilles under FDR.
Now let's recognize that corporate are sitting on trillions of dollars while the deficit IS trillions. The main difference from FDR's more liberal views was the fact that since the 1940s, we've destroyed our left movement that pushed FDRto some stresses that saved capitalism.
Obama is merely responding to where his money comes from and that is the richest among us. As it stands, both parties are indeed bad. But atty least onepparty will take a left-center position because it is made up of more progressive minded people.
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A court trial is not necessary to prove infringement. Prima facie evidence is what is used in these instances.
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You've made a horrible misjudgment, since I don't think that at all. You are incorrect in thinking that MU is criminally liable for infringing files uploaded by users. If they were, half the internet would've been shut down by now.
"And there is nothing outdated about selling something that is highly desired."
Never said there was. However selling something that's infinitely reproducible has never worked very well before, so it can't be expected to work very well for digital content.
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The DMCA was passed in 1998 and written into Title 17 of the US Code.
There are far more doltish pirates on here than I ever realized...
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You don't understand how the law works, do you?
Title 17, Sec 512 here doesn't discriminate between civil or criminal cases, or what types of redress can be sought. It simply states who has protection under the law and who doesn't.
There definitely seems to be this odd notion going around here that since the DMCA was not used aggressively in the past, that there was nothing in it that could stop continued mass infringement.
Nothing could be further from the truth.
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A court trial is not necessary to prove infringement. Prima facie evidence is what is used in these instances.
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Which is why we have law enforcement. Have a powerful day.
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Review, Please.
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But nah, can't be AJ. He'd never not sign in. /s
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Who determines whether a piece of evidence is actually prima facie evidence of infringement? The accuser?
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I think he assumed you would understand it means "infinitely reproducible at essentially zero marginal cost". That's kind of a mouthful so it's nice to abbreviate sometimes.
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Oh I thought you might be interested in a reasonable discussion. My mistake.
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A trial by a jury of peers is not required no, but if a court is told by Party A that party B has infringed and shows prima facia evidence and then Party B balks and brings up defences then again Infringement needs to be proven upon balance.
Oh and an IP address is NOT prima facia evidence of anything anywhere nor is an "under penalty of perjury" notice of infringement (the DMCA) signed by the plaintiff or there proxy.
So my statement of repeat infringer still stands. Even though the onus is stupidly upon the respondent to prove they are not guilty of infringement. Which might one day be a good reason for creating an anti-slapp procedure for malicious copyright torts. Yes I am of the mind that pure tort reform is not just a good idea within the USA but mandatory.
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Here!
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Prima facia evidence is ONLY a presumption of truth UNLESS questioned by respondent and for the civil preponderance to be actually proven other than by an ex parte hearing an onus on the plaintiff is still to have all defences covered by that first encountered/blush evidence.
A trial by a jury of peers is not required no, but if a court is told by Party A that party B has infringed and shows prima facia evidence and then Party B balks and brings up defences then again Infringement needs to be proven upon balance.
Oh and an IP address is NOT prima facia evidence of anything anywhere nor is an "under penalty of perjury" notice of infringement (the DMCA) signed by the plaintiff or there proxy.
So my statement of repeat infringer still stands. Even though the onus is stupidly upon the respondent to prove they are not guilty of infringement. Which might one day be a good reason for creating an anti-slapp procedure for malicious copyright torts. Yes I am of the mind that pure tort reform is not just a good idea within the USA but mandatory.
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and maybe you need to do some homework on actual judicial and legal procedures yourself. And also a LOT of swatting on actual evidence procedures
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I understand a bit, but I am not a lawyer nor have I ever claimed to be. To enrich my understanding is why I engage in discussions such as this.
Title 17, Sec 512 here doesn't discriminate between civil or criminal cases, or what types of redress can be sought. It simply states who has protection under the law and who doesn't.
Ok. From my understanding (which may possibly incorrect or incomplete) Title 17, Sec 512 is describing liability for "monetary relief, or,[..], for injunctive or other equitable relief". That's the stuff of civil lawsuits, not criminal. I was just curious how you made the leap to using that definition in a case of "criminal infringement" as a reason for the DOJ bringing such allegations against Mega.
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Also they are NOT a requirement and are worthless when dealing with foreign non USA organisations no matter whether that organisation conducts business, has a presence, or otherwise within the USA.
In fact I myself have received some and they really make crappy toilet paper but are amusing to read and I always give the same reply as in Arkell v. Pressdram (1971) [unreported] [UK]
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Oh and we are talking about NON Grand Jury laws here.. Standard jurisprudence under common law court structures and NOT criminal law.
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Megaupload is covered.
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Completely false. Come back when you have a clue.
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