Justice Department Looking To Change The Law That Made It Impossible To Serve Megaupload
from the but-of-course dept
This one is a bit old, but it appears that nothing's happened on it yet. cosmicwonderful alerts us to the fact that, back in October, the DOJ asked the federal courts to amend the rules on serving criminal complaints to foreign companies. As you may recall, the Justice Department ran into a bit of a hiccup when the courts first realized that Megaupload is a foreign corporation with no US address, and that the federal rules on issuing an arrest warrant or summons requires that a copy be sent to "the organization's last known address within the district or to its principal place of business elsewhere in the United States."But what if there is no business in the US? That's what the DOJ and Megaupload have been fighting about in the courts, though the courts have (so far) said that the DOJ can proceed. Still, with this requested amendment, the DOJ makes it clear it doesn't want to run into this issue again.
The Department of Justice recommends amendments to Rule 4 of the Federal Rules of Criminal Procedure to permit the effective service of a summons on a foreign organization that has no agent or principal place of business within the United States. We view the proposed amendments to be necessary in order to effectively prosecute foreign organizations that engage in violations of domestic criminal law.While most of the request for the amendment focuses on a ruling in a case involving Chinese espionage via a Chinese firm called Pangang, Megaupload and Kim Dotcom do get a mention. The DOJ first notes how unfair it seems that it can't unleash its powers on foreign companies:
First, we recommend that Rule 4 be amended to remove the requirement that a copy of the summons be sent to the organization's last known mailing address within the district or principal place of business within the United States. Second, we recommend that Rule 4 be amended to provide the means to serve a summons upon an organization located outside the United States. The proposed amendments are necessary to ensure that organizations that commit domestic offenses are not able to avoid liability through the simple expedients of declining to maintain an agent, place of business and mailing address within the United States.
Accordingly, the United States maybe faced with the anomalous result that a private civil litigant will be able to pursue an action against an organization while the government remains helpless to vindicate the laws of the United States through a corresponding criminal proceeding.And then discusses Megaupload in a footnote:
Another example is provided by a pending case, United States v. Dotcom.... A grand jury returned an indictment against foreign organization Megaupload Limited and other defendants on racketeering, copyright infringement and money laundering charges. In response, Megaupload Limited — a foreign organization that has an extensive presence in the United States (it allegedly leased more than 1,000 servers in the United States, facilitated the distribution of illegally reproduced works throughout the United States, and has caused damages in excess of $500 million to victims) — has specially appeared and argued that it is immune from prosecution in the United States simply because it does not have an agent or mailing address in the United States: "Megaupload does not have an office in the United States, nor has it had one previously. Service of a criminal summons on Megaupload is therefore impossible, which forecloses the government from prosecuting Megaupload."I wouldn't be surprised to see this amendment eventually go through, though it still does seem somewhat questionable to think that the US government can bring criminal charges against a foreign company with no physical presence within the US.
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Filed Under: criminal complaints, doj, foreign companies, kim dotcom, summons
Companies: megaupload
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Hitler.
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Good to see the American government flying so high.
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Wait, did they just really say that? I guess they're counting on the prohibition of ex post facto laws not applying to "rules of procedure".
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Megaupload was doing BUSINESS in the United States.
Teh Internets and international trade do have a down side, ya know. Just because they need to update paperwork procedures doesn't mean DOJ can't act against obvious crimes.
Mike has a true mania for corporations escaping responsibiity. It's one of this few visible principles.
Oh, and this PROVES why DOJ should have gone after Megaupload:
Study: Megaupload closure boosted Hollywood sales 10%
http://www.theregister.co.uk/2013/03/08/megaupload_piracy_study/
BTW: I link there rather than the study itself because The Register has an entirely different slant on Megaupload than Mike does.
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Re: Megaupload was doing BUSINESS in the United States.
Oh wait, no it hasn't. Until then, he's to be considered innocent.
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Re: Re: Megaupload was doing BUSINESS in the United States.
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Re: Re: Re: Megaupload was doing BUSINESS in the United States.
The DOJ sees it as guilty.
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Re: Megaupload was doing BUSINESS in the United States.
Does that mean we should therefore be prosecuting all these giant global corporations for violating US law even though it's happening outside of the US?
I'm all for knocking down these global corporations a notch or two but this seems a little extreme.
And no the "Well this is on the INTERNET" arguement really doesn't make a lick of difference to the situation.
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Re: Megaupload was doing BUSINESS in the United States.
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Re: Megaupload was doing BUSINESS in the United States.
Is it really so fucking difficult for you to read, comprehend what is written and then base an argument on the facts presented to you before going off on retarded tangents?
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Re: Megaupload was doing BUSINESS in the United States.
So much fail:
"The study adjusted its figures to account for the Christmas sales rush."
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"The research comes from the Carnegie Mellon University's Initiative for Digital Entertainment Analytics (IDEA), which tracked the number of Megaupoload users in 12 countries by using Google AdWords estimates. The sales and rental data for the period came from two anonymous studios, but only for digital sales since the data for physical media was deemed "less reliable"."
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OUT_OF_HIS_MIND strikes again.
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Re: Re: Megaupload was doing BUSINESS in the United States.
The creation of IDEA was made possible through a gift from the Motion Picture Association of America (MPAA)
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Re: Megaupload was doing BUSINESS in the United States.
Study doesn't acount for, among other factors:
Release of previously unavailable titles, increasing demand.
Seasonal timing (holiday sales) increasing demand.
decrease in traditional media (dvd/blu-ray) sales.
But then reason and logic have never been OotB's strong suit.
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Re: Megaupload was doing BUSINESS in the United States.
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Re: Megaupload was doing BUSINESS in the United States.
Then, proposed solution, completelly isolate USA from the rest of the world, then anything will be pirated, any harm could done to them, and THEY could not do any harm (spy my data for example) to anyone.
That would make they learn...
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Re: Megaupload was doing BUSINESS in the United States.
Should I get charged in every country in the world for criminal destruction of evidence because someone used it wrongly?
By the way for every study showing Hollywood got an increase in profits there are 2 that show it hurt sales for smaller non-blockbuster ticket sales. How about we shut down Dropbox, Cubby and Sugarsync to see if there is a profit increase. While on the subject of data lockers how about some physical ones. How about we block train stations and airports from renting lockers to see if there is a decrease in drug sales... I would bet it would work while hurting people who use digital and physical lockers for work and personal backup.
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Re: Megaupload was doing BUSINESS in the United States.
1. "A new study claims that the revenues of TWO anonymous Hollywood studios rose.."
Just two? what about the rest? did their revenue drop due to the shutdown?
2. "..but it's worth noting that IDEA itself was created last year with funds provided by the MPAA"
No comments needed
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Re: Megaupload was doing BUSINESS in the United States.
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Re: Megaupload was doing BUSINESS in the United States.
No, it doesn't prove anything. Even if the closure of Megaupload did boost sales 10%, boosting sales is not the purpose of copyright.
"The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors." (Fox Film v. Doyal.) Copyright "must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts." (Twentieth Century Music Corp. v. Aiken.)
Unless that 10% sales boost primarily benefited the public, and resulted in more works being broadly available, then it is completely immaterial insofar as copyright is concerned.
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Be careful what you wish for...
So what happens if they get this, and other countries decide they want the same power? Will they stand up for the right of European nations to shut down (say) Goldman-Sachs for breaking their investment laws?
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Re: Be careful what you wish for...
Wait, so you're saying some good may come out of this after all?
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I recommand very other countries to set up similar law to "protect their citizens" and see if DOJ will cry "unfair".
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Re: They used my money to go delete my art that I own and stored on megaupload and now they want to use more of my money to go get the "ringleader"??
The request by the department of justice is not coherent. The very next step is a snag: how do they apprehend them? extradition? how much does that cost? Also, after tearing down MegaUpload because Hollywood said 500 million in damages have occurred, why did 500 million dollars in sales show up on NBCI Universal's books? Why did their growth not see a single spike in sales and why was christmas not their best year ever? Could it be that there are no material losses to hollywood studios? Could it be that independent musicians and artists and people just saving files too big to keep on their laptops had nearly infinite losses? Where are the files they stole from all the users? What are they doing with them? Who has them now? Those were important to the world. The dead links are still clogging the worlds media with dead ends. Why did the DOJ think it was ok to kill this: https://www.youtube.com/watch?v=o0Wvn-9BXVc it had nothing to do with justice. It was Biden. Googleit.
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So you think foreign corporations should be able to violate U.S. law and cause harm in the U.S. yet evade prosecution because they don't have a U.S. mailing address?
Awesome argument, Pirate Mike.
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Why do you hate the fact that laws must be applied equally and fairly where they apply?
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bitchez...
(it ain't motherfuckin' kiwis, or motherfuckin' candadian geese, its MOTHERFUCKIN' EAGLES ! ! ! that's why...)
geez, it's really simple, i don't know why you pointy headed sheeple don't get it...
art guerrilla
aka ann archy
eof
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We are not the global dictator.
Ultimately, this comes down to a basic issue of national sovereignty. We don't get to bully people in other countries and they don't get to do the same to us. This is a GOOD thing.
Attempting to ignore national borders just because we happen to be the biggest bully right now will come to bite us in the arse sooner or later.
The rule of law actually requires following all of the laws rather than just the ones you find convenient. That includes little things like due process and civil procedure.
Things that "get bad guys off" are not just "technicalities". They are also the law. They are as much the law as anything else including the laws against murder and rape.
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Re: We are not the global dictator.
What is needed is an international treaty on how the international society can set up at least a minimum of laws so we can avoid having the jurisdictional long-pissing contests over where someone can be charged. That most of us hope that the IPR-laws will be reasonified before that is another story...
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To reach a place where countries can get a bilateral extradition treaty, you need at least some common ground. Alternatively you need the common ground for people to actually respect laws on the internet and not just defer to some local 30 year old paper saying 180 days or older is abandoned mails for jurisdiction...
I am not hot on only setting up minimum rules, there also is a need for maximum rules...
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Re: Re: Re: Re: We are not the global dictator.
It seems to me there are, broadly speaking, two approaches. One is to let each country have its sovereignty and make its laws, or let countries enforce their laws within other countries' borders. Are you advocating for the latter, or is there a third option I'm missing?
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This question is what I'm thinking of too.
FTFA:
I don't get this. There must be *some* way for a country to seek redress when someone outside their borders break their laws. Looking at this from the perspective of a systems geek, this seems very messy (no surprise there). Ideally, I'd see the solution like this:
- Some country notes that "someone" elsewhere is breaking its law (via the Internet).
- That country's "DoJ" contacts the authorities in that other country and requests they prosecute that "someone."
- If that second country finds that "someone" is breaking *their* law, they prosecute or extradite that "someone."
Why the !@#$ would the US DoJ (or any other country) want to do otherwise?
Conversely:
- Some Muslim country is offended that I have a cartoon of Muhammad on my wall (I don't, but just sayin' ...).
- My country responds that that is not illegal here.
- I'm not bothered, but that Muslim country and my country may need to discuss amongst themselves.
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The treaties are already there for such egregious crimes such as Genocide, Indecent Images of Minors (CP), Human Trafficking, WMD trafficking.
To create treaties that are bilateral, universal, and for all crimes you first need equity which the USA will not allow when it comes to extradition of it's own citizens. Secondly you need constant and consistent criminal systems and mores throughout the world. Ths is not the case and until humans throw away their ideologies, egos, greed, culture, and all become ants marching to the same drum (the USA wants it to be their beat) then this will NEVER occur.
The maximum rules are already in place. Copyright or any IP structure is NOT egregious enough to be a maximum crime and hopefully never will be. Also each jurisdiction already has rules, regulations and laws for both min and max structures. Who decides which 'rules' are the best? the USA? The EU? Oceania?, the Vatican? the Islamists? the Hindus? The FlatEarthers? The Capitalists? the Socialists? The [insert ideology here]?
Shouldn't each community on its own be able to, unless it egregiously affects others with imminent and measurable harm set it's own rules/regs without some upstart egoistic corporate company/country coming in and stating they are butthurt and they require 'justice' or what they state is justice to them without using the actual laws of the community they are beholden too.
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Um. Wow. No. You don't have to be physically in a jurisdiction to violate the laws in that jurisdiction. This is basic stuff. Aren't you a lawyer? It doesn't show, if so.
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Or are you saying that if I violate the law of some random nation that they have the right to enforce their law against me even though I'm not in in that nation or a citizen of that nation?
I don't think that's true. And if it is true, then that needs to be fixed immediately, full stop. Because it means that the entire globe would have to operate under the law of the most restrictive regime on the planet.
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If you, reaching out over the internet, violate someone's rights in Country X by, say, defaming them or by installing malware on their computer, then that party could conceivably sue you in Country X for the wrong you have committed. The court there could have jurisdiction over you, and potentially could enter a judgment against you even if you don't show up. Whether that judgment is enforceable is another matter. If the party obtains a judgment against you, they could then institute proceedings in the country where you live to enforce it. You could attack the foreign court's jurisdiction in that proceeding, but if you lost, the judgment would bind you. It's not that the world operates "under the law of the most restrictive regime on the planet," it's that if you violate the laws of foreign nations from afar, you might be on the hook for your wrongs. It would be unjust to do things otherwise, otherwise international lines would give wrongdoers safe harbor.
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Also, the idea that a person can be tried and charged for violating another country's laws, without actually living there would open up a nightmare of a legal mess, as such delightful places like China, North Korea, countries with harsh religious based laws... all of them would suddenly be able to charge and try people from all over the world with violating their laws.
How again is this supposed to be a good idea?
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If you're not in a particular jurisdiction, violating the laws of that jurisdiction is irrelevant, as they don't have jurisdiction over you.
If there's a law in Idaho that makes it illegal to possess marijuana, but you're in Washington state and light up a joint (where it is legal), the Idaho State Police can't arrest you and drag you back to Idaho.
Aren't you a lawyer? It doesn't show, if so.
Assuming John is a lawyer (and if so, I'm sure he's a good one), can John sue you for libel in the UK for that statement? (Yes, I'm aware there's a civil/criminal difference here. I'm making a point.)
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The law hasn't worked that way for a long, long time. If you're in Florida and you defame someone in California, the courts in California can have jurisdiction over you. See Calder v. Jones. http://en.wikipedia.org/wiki/Calder_v._Jones
If there's a law in Idaho that makes it illegal to possess marijuana, but you're in Washington state and light up a joint (where it is legal), the Idaho State Police can't arrest you and drag you back to Idaho.
Correct, because you haven't violated Idahoan law.
Assuming John is a lawyer (and if so, I'm sure he's a good one), can John sue you for libel in the UK for that statement? (Yes, I'm aware there's a civil/criminal difference here. I'm making a point.)
If he's in the UK and I defame him from the U.S., he might be able to sue me in the UK. I don't know anything about UK law, though.
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The word foreign only means external forum in relations to conflict of laws, which is what all this is part of.
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Correct, because you haven't violated Idahoan law.
Can you give a clear reasoning as to why these two statements are not in conflict with each other?
More to the topic at hand:
Let's say a sovereign country, for example, a island country out in the Pacific somewhere, has no copyright laws. It also has no treaties or otherwise with the United States tangling their laws with US laws.
That country does have internet access, however, and I, as a resident of that Pacific island, set up a file locker service. I run the service entirely from this island, I do not lease servers outside of it. I offer my service to anyone that wishes to pay for storage on my servers, as it is not illegal to do so in my country. And since my country has no copyright laws, there is nothing illegal about me ignoring a DMCA notice from some foreign country.
Now given that hypothetical situation, what would happen if the US DOJ tried to criminally charge me in the US, regardless of whether they could serve me papers in my country or not?
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Sure. I can see why that would cause confusion. State laws are territorial, meaning they only apply within the state. The Idaho law prohibits the possession of a controlled substance within the state of Idaho. That law can only affect those who are physically within the state who actually possess the physical molecules that make up the banned substance. Other laws, like defamation or copyright infringement, don't have that physicality requirement. A state's defamation law or copyright law (state copyright law not preempted by federal copyright law) only applies in that state, but a person who is not in that state can violate those laws if the effects of that violation are felt in that state.
So, Shirley Jones, who lived in California felt the harm of the defamation in California, and that gave California jurisdiction even though the defendant was in Florida when he defamed her. The test from that Calder v. Jones case is referred to as the "Calder effects test" because jurisdiction exists where the harmful effects of the wrongful act are felt. There's other tests for jurisdiction too. Typically you would look at whether the defendant has "minimum contacts" with the state or whether he has "purposefully availed" himself of the state. For example, if you are in Wisconsin and you enter into contracts with people in Kansas, then you have contacts with Kansas and you have availed yourself of that state's law. That would mean that you could be sued in Kansas over those contracts, even if you never set foot there. By choosing to do business in a foreign state, you open yourself up to being sued there over things that flow from that business.
Now given that hypothetical situation, what would happen if the US DOJ tried to criminally charge me in the US, regardless of whether they could serve me papers in my country or not?
If you intentionally caused harmed to rightholders who were in the U.S., then under the "Calder effects test," you could be prosecuted in the U.S. since there is jurisdiction wherever you cause harm to others. Whether or not they could extradite you, or try you in absentia, or whatever are other things that might protect you. But theoretically you could be prosecuted in the U.S. because you caused harm in the U.S.
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If you intentionally caused harmed to rightholders who were in the U.S., then under the "Calder effects test," you could be prosecuted in the U.S. since there is jurisdiction wherever you cause harm to others.
There are two glaring problems.
First - "intentional" harm. Sure, offering a valuable, legal product or service in one country can cause harm to competitors elsewhere. That's how capitalism and free markets are supposed to work - Toyota making a cheap, fuel efficient, and popular car and selling it worldwide causes "intentional" harm to Ford if they can't (or refuse) to compete. If you're arguing against that, then you're promoting the idea of a law such as "felony interefence with a business model."
Next - how does this not result in a situation where the most restrictive law in the world can apply to anyone who does anything on the internet? If someone in the US, or the US government, can sue or charge me for doing something entirely legal in my own country, then whatever happened to each country's own sovereignty? Are we heading back to a world where large countries are effective empires and free markets are replace with mercantilist ones?
Is there anyone who is not a lawyer that thinks this is not absolutely bat-shit insane?
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I think you're reading too much into what I said. Not all things that cause harm are actionable. I was only referring to actionable harms, like defamation or infringement. The sort of harm you're referring to wouldn't be actionable unless it violated some law like Sections 1 or 2 of the Sherman Act or something like that. Typically, legitimate competition that drives a competitor out of business is legal. But certain business practices (like predatory pricing, monopolies, etc.) are unfair and illegal.
Next - how does this not result in a situation where the most restrictive law in the world can apply to anyone who does anything on the internet? If someone in the US, or the US government, can sue or charge me for doing something entirely legal in my own country, then whatever happened to each country's own sovereignty? Are we heading back to a world where large countries are effective empires and free markets are replace with mercantilist ones?
If you're not in the U.S., the U.S. would only have jurisdiction if you aimed your conduct at the U.S. and caused harm in the U.S. (the type of harm that is actionable). Even if what you're doing in your country is legal, if you do it over the internet so that it affects people in a country where it's not legal, then you may have to answer in that country. If it's legal in your country, chances are you'd never be extradited to that other country and whatever judgment might be obtained in that other country could never be enforced against you. So you'd be untouchable--so long as you never traveled to that other country!
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But once again, we get to the point that those are US laws, and people in other countries are being held to them. Are you okay with that?
If you're not in the U.S., the U.S. would only have jurisdiction if you aimed your conduct at the U.S. and caused harm in the U.S.
Who gets to define "aimed your conduct"? The US or the party who has been harmed? Of course they're going to claim the harm is actionable and aimed at them - just look at the Rojadirecta case. Does using international payment processors count? Having a .com domain name managed by Verisign (even if you bought it from a local registar) count? Does it count if you *don't* geoblock certain country's IP ranges (which is getting harder to cleanly define for all sorts of reasons)?
So you'd be untouchable--so long as you never traveled to that other country!
Dmitry Skylarov. Should doing something that is perfectly legal in one country make it impossible to travel elsewhere?
I've been told that as far as the courts are concerned, once you're there, they don't particularly care how you got there. There's no legal problem (as far as US courts are concerned) with running some kind of police/paramilitary to arrest/kidnap someone and bring them to the jurisdiction. Is that your understanding as well?
Back to the smoking weed in Washington example - suddenly lighting that joint up a week ago has made it impossible to travel to Idaho now, and you have to be worried about a SWAT team coming and dragging you across the border. Do you not see an inherent problem with this?
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The plaintiff would argue that the conduct was aimed at them, and the defendant would argue that it was not. Rojadirecta was a website that was used to violate U.S. rightholders rights. The domain names were property in the U.S., so jurisdiction was simple. That the OPERATORS of the site were in Spain was irrelevant. An instrumentality of crime that exists in the U.S. can be seized. So, yes, the fact that .com's are handled by Verisign in the U.S. means that all .com's are potentially seizable--if there's probable cause that they are used for crime, they can be seized.
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Sorry, but wasn't the case against Rojadirecta dropped? So, it looks like the website was not used to violate U.S. rightsholders' rights.
Especially since those same rightsholders had already sued Rojadirecta in Spain - and lost.
So, yes, the fact that .com's are handled by Verisign in the U.S. means that all .com's are potentially seizable--if there's probable cause that they are used for crime, they can be seized.
That remains to be seen, since none of those seizures have actually made it to a judicial ruling. Every time any of the owners of the seized domains have challenged the seizures, the DOJ has stalled for months on end, then dropped the charges.
On the other hand, courts have made it clear that mere probable cause is absolutely not enough for seizure, at least outside of the copyright domain.
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The problem with your statement is that infringement isn't actionable internationally because it is a government granted monopoly. If a foreign country chooses not to grant said monopoly then the person distributing the work isn't violating any laws which have jurisdiction over him. You could make the argument that the person RECEIVING the copyrighted work in the US violated the law since they actually initiated and created the copy but none of the copyright holders like that FACT since it is far harder to pursue millions of individuals than it is to pursue a few hundred individuals.
Imagine that you could launch packages into space and have them land at an address in the U.S. Would someone selling drugs from Amsterdam be liable for violating the drug laws of the US if people in the US ordered drugs and the packages were dropped off at their front door? If you think so, then let's take it one step further, what if the person selling the drugs in Amsterdam had NO WAY of knowing who the packages were being delivered to, would he still be liable?
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You're using O'Dwyer as an example? Seriously?
He was never charged with copyright infringement in England; and others who have been sued for similar things had been found not guilty. Moreover, he would have been the first person in the U.S. to be criminally prosecuted for providing links, and not hosting files, meaning that there's no precedent for believing he violated U.S. criminal law either.
Yet, the U.S. makes a big stink about extraditing him, England goes along, and when he gets here, the government essentially drops the case.
The whole ordeal was a bad joke, a waste of taxpayers' money, and an unnecessary victimization of a foreign national.
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So, if I say something that is perfectly legal in the U.S., but violates Sharia law, then I can be extradited to Sudan to face charges... as long as I say it "over the internet."
Got it.
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Got it.
It might technically be a crime in Sudan, but the U.S. wouldn't extradite you for that. This isn't hard, Karl. Sheesh.
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Yet, the people who violate copyright laws of the U.S. - but not of their home countries - should be extradited and charged, like O'Dwyer or Rojadirecta.
Got it.
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The extent of a country's laws
So that country has the authority to put the country on trial? To demand that the CEO be extradited to be imprisoned?
Or let's take Britain or one of the other European countries that have much harsher libel/slander laws than the US. If a US citizen with a popular blog says unpleasant things about a European politician that are *perfectly legal here in America*, but that would run afoul of Britain or France's libel laws, is that citizen then going to be put on trial in absentia (or be forced to fly over at their own expense to stand trial)?
The thing is is that every country has, even in this era of globalization, its own determination of what its citizens can and cannot do.
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Case is a slam dunk.
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A site run entirely from within 1 country will be generally available to the entire world thanks to the way the Internet works.
He had servers in the US. He did financial transactions in the US.
Those arguments are more persuasive, but not a slam dunk.
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And?
The decision to do business in a given country via the internet is still a conscious one.
And a company can block its output to a country's IP address string if they choose to do so.
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So why don't the US block a foreign websites IP address if they have a problem with the website in question. If certain countries can block the pirate bay then it can't be hard for the US to have blocked Megaupload if it sees that the site is a violation.
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Well of course, that is the correct solution.
However Google blocked that legislation as they make money off of the ad networks on foreign pirate sites.
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Laws can't extend past boundaries because laws often don't match and in some cases flat out contradict each other.
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Also it should in theory work 'both ways' sadly in practice with the USA and its unilateral extradition treaties it only works ONE way.
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And we thereby give foreign countries to do the same to American firms that break their laws, boy?
Think before you keyboard, son.
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this morning..
this afternoon..
or tonight.
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America! Fuck yeah!
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There's Mike's favorite epithet again - "questionable." (Used when "bogus," "bullshit," or "ridiculous" might be more obvious choices, but sounds more polite and less potentially defamatory.) In this case, Mike, I don't get it. How is it "questionable" that DOJ could bring criminal charges against a foreign company that doesn't have a registered agent or place of business in the US? Businesses, like individual people, are fully capable of committing crimes that affect the U.S., or might even be directed toward the U.S., without ever setting foot in the country, much less opening an official office here and staffing it with someone who can receive subpoenas and warrants and correspondence. To take a textbook example, imagine some fellow standing near the US border in Ontario or Alberta, and firing a rifle at people standing on the US side. Does it seem at all strange that the US would be able to prosecute him criminally? (There's a body of US an international law that allows this.) If a Canadian telemarketing company calls thousands of US numbers and defrauds Americans (say, by tricking the recipients into paying money to the company on some sort of false pretenses), doesn't it seem reasonable for the US to seek criminal charges? Should it matter whether the Canadian company has decided to set up a US office and registered agent? And if you think that *should* matter, are you not bothered by the perverse incentives such a requirement would create? (If you don't want to be prosecuted in the US, just neglect to register an agent to receive a summons or subpoena, and voila, you can't be prosecuted.)
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How is it "questionable" that China could bring criminal charges against a US company that doesn't have a registered agent or place of business in China? Businesses, like individual people, are fully capable of committing crimes that affect China, or might even be directed toward China, without ever setting foot in the country, much less opening an official office there and staffing it with someone who can receive subpoenas and warrants and correspondence.
Now. Does that give you the warm fuzzies?
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How is it "questionable" that North Korea could bring criminal charges against a US company that doesn't have a registered agent or place of business in North Korea? Businesses, like individual people, are fully capable of committing crimes that affect North Korea, or might even be directed toward North Korea, without ever setting foot in the country, much less opening an official office there and staffing it with someone who can receive subpoenas and warrants and correspondence.
Sorry, but China was too reasonable... :)
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I genuinely don't see the problem with that.
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The problem I have is the idea that someone who is obeying the laws in the country they are are in can be subject to US law even though they aren't in the US. Anyone they send to/hire in the US would, of course, be subject to US law.
But if someone provides an online service that is legal in their own nation, then they should not be subject to prosecution by the US because they are, in fact, obeying the law where they are.
To say otherwise is to say that any nation can impose their own law on any other nation (unless you're arguing that only the US should have this power, which I hope you aren't arguing). I think that world would be a horrific one, for reasons that, I think, are obvious.
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i think they shouldnt mix laws and to be able of prosecuting those cases it must be illegal in both countries
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The same way foreign countries can't bring criminal charges against US companies that don't have a physical presence in their territories.
You obviously never took classes in political science, boy.
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You are saying that if my child were to kick your child's ass, you should have the right to come to my house, take my child, and then spank and punish him how you see fit. Two things: that's dumb, and no that isn't going to happen. My child may or may not have been wrong, but either way, you keep your ass your yard.
Now let's correlate it to the actual issue (something you failed to do with your wild scenarios.) Let's say my child (Dotcom) builds a campsite(Megaupload), and for a small fee, all children can sit around the fire and share stories (store digital data.) Well, your wife (MPAA/RIAA), though not the "man" of the house (USA), is obviously the "boss," decides some children may or may not be telling her stories (blahblah copyright law,) so she tells you fires are illegal and people who own campsites are criminals, so you (FBI) get like 50 fully armed swat members with helicopters and such to raid my house come take my son and all the money he acquired from operating a legal business. Again, dumb. And although not an exact comparison, its a little better than a canadian shooting his rifle across the border, twit.
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@AC 11:21
No, what I'm suggesting is nothing like the example you give. The question here (the one Mike mentions) isn't whether US authorities ought to be able to go into a foreign country, or take people from that country and bring them back to the US and punish them (which is what your example suggests). No, the question is whether the US should be able to bring a criminal case against a foreign corporation. It's a completely separate issue from whether the US could ask the foreign country to extradite a person to the US, much less go into the country and forcibly grab the person.
The legal issue Mike's post is talking about is just about the formal rules governing whether, and how, US authorities can serve documents on a foreign company. To use your example, the question isn't whether I could enter your house and forcibly remove your child or punish him, it's whether the local prosecutor can prosecute you or your child, and whether he can send a summons to your house to demand that you and your child appear in court.
To use a more relevant example, let's say I live in Illinois, and a company in Connecticut targets me and a bunch of my Chicago neighbors for some sort of scam (like mailing us offers for some sham service). We fall for it. The Connecticut company targeted Chicagoans for some reason, but the scam clearly violates Illinois law. The Cook County prosecutor wants to file criminal charges against the Connecticut company. US law and the constitution both allow this. But there's a rule that some people read as requiring that the prosecutor has to serve a complaint on the company's mailing address in Illinois, and this Connecticut company doesn't have an Illinois office (even though they target Illinois residents for scams, and transact lots of business with people in Illinois). Does it make sense that the Illinois prosecutor can't do anything? If you solution is, "the Illinois prosecutor should ask Connecticut to prosecute," then what happens if the Connecticut company hasn't scammed anyone in Connecticut, or if the CEO is best buddies with the prosecutors in Connecticut, so they don't want to bring a case?
That's really what this issue is about. I think most people at TD, if they can forget about the particular facts and theories of the Megaupload case for a minute (because that's not what this issue is about), would agree that the Illinois prosecutor ought to be able to bring a criminal case against the Connecticut corporation.
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"... though it still does seem somewhat questionable to think that the US government can bring criminal charges against a foreign company with no physical presence within the US."
Under this logic the US wouldn't have been able to go after Bin Laden.
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Yeah, because that was the same as Megaupload.
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Note: they did NOT go after Bin Laden via the judicial system.
So, actually your example makes no sense at all. As per usual. If you can't even understand the difference between a judicial case and extrajudicial actions based on a claimed "war" then you're even more clueless than you normally appear to be. That takes work. If you put half as much effort into not calling your fans criminals, perhaps you wouldn't be so angry all the time.
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So bitter and so angry. Typical Mike post. How sad that he can't have a productive discussion in the comments.
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So what productive addition to the comments have you added? Compared to Mike pointing out the judicial vs military natures of the comparison?
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Look in the mirror, buddy.
Mike actually made a substantive rebuttal of the A.C.'s claims. You did nothing but toss out ad hominems.
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Syria, North Korea, China, Iran etc are not the real threats to this world. The US are. We need to put a stop to US tyranny across the world once and for all.
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Highly unlikely any country we have normalized relations with (and thus an ambassador) would revoke diplomatic immunity over something like that. And even if they did, I'm sure they would allow us plenty of time to close the embassy or consulate and recall the diplomats. I can't think many countries would want that.
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Good on Dotcom for finding the loophole but, last I checked, we were big on paying attention to unintended consequences around here and leaving the law as it stands has plenty of them.
There are plenty of unintended consequences to be had to saying all US laws apply to any company with any hardware located in the US too though. This mess needs some very careful wording to straighten out.
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That case can be taken care of without demanding that the US can enforce its laws anywhere on the planet. Include the entity on the list of entities that US business are forbidden to do business with. If the colo persists in doing business with them, prosecute the colo for that.
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Nobody expects ...
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Yea and how much has the investigation/seizure of the information on the Megaupload's servers cost (legitimate) victims of the DoJ's actions?
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They say that like he's already been found guilty and sitting in a prison.
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America is no longer #1
More and More Citizens of other Nations will hate us Americans.
We will lose our Science and Tech in Certain Areas as well due to Religious A-Holes who do all they can to limit Sciences they do not like.
Blah Blah Blah and Insert your hate remark here.Sure there are plenty of other things to write.
DOJ Buys Prison against the wishes of Congress is another topic.
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Think about how good an idea that really is before you argue for it.
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Present an example of an American company without a foreign office being prosecuted by a foreign country, boy.
We're waiting...
Still waiting...
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Reverse Logic
Running a porn site is a violation of Indian domestic law. Just because the site is available in India make all US webmasters running adult sites liable to Indian prosecution? They sure have committed a crime according to Indian domestic law.
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DOJ idiocy
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We don't like the laws in your country, so we'll enforce our own laws in YOUR country.
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The Justice Department's Sloppy Legal Craftsmanship.
The Department of Justice opinion relies on FORD v. UNITED STATES, 273 U.S. 593 (1927), a case concerning a Canadian rum-runner ship which was seized in the Farallon Islands just off San Francisco, in October 1924, pursuant to a treaty with Great Britain signed in May, allowing the Coast Guard to board and search British vessels out to a distance of one hour's traveling time from the American coast, rather than the three miles of territorial waters at that date; in exchange for which British vessels were allowed to carry liquor under seal through American waters, notably the Panama canal. The decision repeatedly cites the consent of the British government, and it cites the loading of the ships in Vancouver as only one step in a series of stages. The conspirators had filed a fraudulent shipping manifest, claiming the liquor was for South America, because they would not have been allowed to sail, otherwise. The defendant, Ford, was the captain of the ship, two of the additional defendants were businessmen operating in San Francisco, and two were presumably Ford's subordinate officers on the ship. The persons who had not entered the United States were persons who had come to just outside the maritime boundary of the United States, in a place which is now part of American territorial waters, and jurisdiction over such persons had been granted by the British government. The British government was willing to make such terms because it couldn't quite see what a legitimate British merchant ship would be doing so close inshore in the first place. Blue water sailors like to keep fifty or a hundred miles of water between them and the shore, for fear of getting caught between a storm and the coast, or of running aground due to errors in navigation. It was abundantly clear that the smuggling ship was much, much closer to the United States than to any other country. Britain did not propose to allow American cops to run around Montreal. This case is of very dubious relevance to Kim Dotcom, who was and is in New Zealand.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=273&invol=593
Likewise, the opinion has a very strange reading of Laker Airways Limited v. Sabena Belgian World Airlines (731 F. 2d 909). This was an anti-trust case, which as the American court recognized, was founded ultimately on the difference between American and English law, and on the difference between American and English government policy. They take one sentence out of context, which is contrary to the whole sense of Laker. Here is a more representative quotation: "There is simply no visible reason why the British Executive, followed by the British courts, should bar Laker's assertion of a legitimate cause of action in the American courts, except that the British government is intent upon frustrating the antitrust policies of the elective branches of the American government." (par 117) The sense of the decision was that the American courts and the English courts would just have to proceed in parallel, and possibly reach conflicting decisions, and that there would just have be continuing strains between the American system and the English system. Such differences, however, do not have to lead to war. This is in opposition to the Department of Justice's apparent view that New Zealand, like the Island of Melos in the Peloponnesion War, must either submit, or be devastated by Air Force bombing, and its surviving inhabitants sold into slavery.
http://openjurist.org/731/f2d/909/laker-airways-limited-v-sabena-belgian-world-airlines- klm-laker-airways-limited
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Lanny A. Breuer, letter to the Advisory Committee on the Criminal Rules
http://s3.documentcloud.org/documents/681194/12-cr-b-suggestion-breuer.pdf
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Other countries... are other countries. US law has hobbled its citizens and corporations alike with laws that apply while visiting/operating-in another country. Also with the ridiculous taxing of revenue made from other countries just like it was earned within the US? Weirdness derived from the mistake of letting politician's use the word 'loophole'.
Now we want to toss out any requirement that our laws apply only to our citizens/corporations/companies? If there is going to be no law why do they need to write one to say that? Is this the precedent we want to set for other countries? No way! This is taking political convenience way to far. Such incursions on National sovereignty of other nations is a possible recipe for war. Lets tone down the legal drone strikes and international tensions might subside greatly. (especially if we stop the real drone strikes also.)
It would be best for all involved if we treat everything on the Internet as hearsay no matter what is said or spoken. (sticks and stones, but words...) Everything. Especially because it is. Evidence is based on first person experience and testimony of that. To violate this for convenience is insane law.
It should be like the (unfortunately lying) Comcrats commercial �Honey, I just downloaded the entire Internet. Do I have time to do it again before dinner?� Yes it should be that simple. Laws based on the abilities of culture, society and technology make for simple happy lives.
US constitutional law was NEVER based on the 'we have to catch every single violator'. Its always been based on the 'prosecute those who we can PROVE are guilty' not just rounding up anyone nearby. �The butler did it� kind of anecdotal analysis was always a fail. (after DNA testing 66% (a majority!) of Illinois death row inmates were innocent. Try digging that out of the newspapers! The governor who championed a reform, based on that, was jailed for corruption. Go figure.)
Its classic that Nigerian scams are perpetrated on US citizens. Basically if you fall for it... you fell for it. Poof your cash is gone with nothing to be done about it. Any legal remedy wold be based on what treaties we have with Nigeria?
A somewhat more stringent interpretation of what slander of defamation is would help prevent likely abuses of Prendaa like firms from filing defamation cases if only just do legal research (mud slinging) on potential defendants.
No one should fear extradition because they used the Internet for personal gain or profit. Only taxes on profits made within a country apply. The only safe way to keep money is to keep it hidden. Especially from ones own government. (Cyprus is good example.)
Don't feel its necessary to force our brand of (horrible?) politics on any other country. Especially when idiotic brain dead treaties like the culturally destructive ACTA, TPP and worse come back to haunt us in ways that water-boarding would seem like fun. It seems that the only thing these treaties do is allow corporate special interest groups to control legislation anyway.
For these bureaucrats to even suggest workarounds to basic human rights is to reasonably expect a red slip to the unemployment line and quickly. I surely dont feel that my constitutional rights are being protected here. (or lately in general) Due Process?? LOL. Is that but a joke anymore?
>>>
Its an actual fact that agencies waste/squander funding on lobbying and even on special interest groups. Should be illegal and would be if moi had any say in it. The following reproducing metaphor is apt and to the point.
This is what is technically termed 'political inbreeding'. Bureaucratic legislative genetic manipulation always leads to bills/acts producing a third crippling vestigial agency leg or duplicate department heads that argue with themselves to the extent nothing is accomplished ever.
Its the unavoidable result when a government agency of law fornicates with the law making process to make more law. What is eventually birthed becomes an overweight monster that only wants to further re-modify law for its own bureaucratic selfishness. This is one of the basic (but almost hidden) flaws of the current bureaucratic (reproducing) nightmare.
Its hard to say anything nice about such interbreeding of bureaucracy. Nothing good can come of it. Bureaucracy is like the movie blob that eats everything in its path and converts it into itself. The MCP (Master Control Program from Tron.) could not do any better.
Punchline. Want to take your hand at influencing the birth of legislation? Read this; https://www.techdirt.com/articles/20130411/01024022673/surprise-rep-bob-goodlatte-thinks-justice-dep artment-is-too-cozy-with-hollywood.shtml#c537 For learning how and who to donate to and why. It does not have to be much but only consistently applied.
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Who worked as an average hoe
He met with Chris Dodd
Licked down his Chris bod
And gave him an average blow
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