Justice Department Looking To Change The Law That Made It Impossible To Serve Megaupload

from the but-of-course dept

Thu, Apr 11th 2013 9:38am — Mike Masnick

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.

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.

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:

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.

12 CR B Suggestion Breuer (PDF)12 CR B Suggestion Breuer (Text)

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Filed Under: criminal complaints, doj, foreign companies, kim dotcom, summons
Companies: megaupload

144 Comments

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Ninja (profile), 10 Apr 2013 @ 10:50am

The DOJ doesn't like due process. They'd love to do whatever they want the way they want. Where have we seen that again?
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Anonymous Coward, 11 Apr 2013 @ 9:46am

Re:
I'll bite the obvious Godwin bait.

Hitler.
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Anonymous Coward, 11 Apr 2013 @ 9:46am

Service of a criminal summons on Megaupload is therefore impossible, which forecloses the government from prosecuting Megaupload.

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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Anonymous Coward, 11 Apr 2013 @ 9:49am

Re: Re:
I was thinking more of a Commu-fascist flavor myself - like Russia.

Good to see the American government flying so high.
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out_of_the_blue, 11 Apr 2013 @ 9:51am

Megaupload was doing BUSINESS in the United States.
It's thereby IN the United States. Tons of credit card transactions for accessing stolen content at high speed. -- Why should Megaupload be any different from the numerous other corporations that have no physical presence in US yet sell to people in it? Do you think that should be an absolute shield for criminals?

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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Anonymous Coward, 11 Apr 2013 @ 9:52am

Wait, so, we are going to be the World Police now? I am a bit hazy on how the whole "international law" thing works, but isn't passing a law in this country that says that we are now allowing ourselves to enforce our laws in other countries just a little bit stupid? It reminds me a bit of the guy I saw on TV selling real estate on the moon.
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Anonymous Coward, 11 Apr 2013 @ 9:56am

Be careful what you wish for...
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.

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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Anonymous Coward, 11 Apr 2013 @ 9:58am

this is another try by the USA to make every country on the planet use it's laws. there is, however, no way on Earth that, if this situation were to be concerning a USA company that was wanted for prosecution elsewhere, would the USA government allow it to happen. this is the USA trying to make two sets of rules. set one so that external companies can be prosecuted in the USA and set two where internal companies cannot be prosecuted outside the USA! double standards, as usual! what is it about the US government and law enforcement agencies that they seem to think that everywhere has to do as they are told, but the US can ignore everywhere else? talk about full of self piss and importance!!
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Anonymous Coward, 11 Apr 2013 @ 9:58am

This is a can of worms they don't want to open. What happens when some other country wants to hold one of our companies liable for something?
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Rikuo (profile), 11 Apr 2013 @ 9:59am

Re: Megaupload was doing BUSINESS in the United States.
That's funny, I didn't know Dotcom's criminal trial had concluded and he had been sentenced.

Oh wait, no it hasn't. Until then, he's to be considered innocent.
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Anonymous Coward, 11 Apr 2013 @ 10:01am

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.

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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Anonymous Coward, 11 Apr 2013 @ 10:01am

Re:
I would cackle as the US Government dug deeper into that rabbit hole.
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Anonymous Coward, 11 Apr 2013 @ 10:03am

Re: Megaupload was doing BUSINESS in the United States.
Ok so all those giant electronics vendors are doing business in the states. A lot of them rely on cheap labor in second or third world countries that would be illegal in their target market.

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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Anonymous Coward, 11 Apr 2013 @ 10:04am

Re:
Casus belli covers it, as its is interfering with the rights and laws of another sovereign state.
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Anonymous Coward, 11 Apr 2013 @ 10:05am

This article brought to you by Team America: World Police.

America! Fuck yeah!
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Anonymous Coward, 11 Apr 2013 @ 10:07am

... 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.

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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Anonymous Coward, 11 Apr 2013 @ 10:07am

Re: Megaupload was doing BUSINESS in the United States.
If Megaupload was a criminal organisation then the US government and DOJ are the stupid ones for allowing such an organisation to do business on US soil without having a US address.
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Anonymous Coward, 11 Apr 2013 @ 10:10am

Re:
I'm sure that will be cold consolation when Iranian Courts shut down Google.
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Zakida Paul (profile), 11 Apr 2013 @ 10:11am

It is time for the rest of the world to rise up against US imperialism. The US cannot be allowed to continue to impose their military, economic, political and cultural will on the world with impunity.

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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Anonymous Coward, 11 Apr 2013 @ 10:11am

Re:
Well, it could be used to go after his pirate allies, like Dotcom, so Mike doesn't like it. Simple. Mike wants foreign corporations to be able to violate U.S. law all they want without repercussions in a U.S. court of law. The idea of foreigners "getting away with it" gets him all excited. He hates the U.S. and he hates the law.
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Anonymous Coward, 11 Apr 2013 @ 10:12am

Re: Megaupload was doing BUSINESS in the United States.
Really, you put all of that together yourself? Just a little tip. The internet is a global market, so no shit Megaupload was accepting us currency, but here's the problem, it didn't have a physical location in the US so it's not governed by the Laws of the US and the DOJ want's to change that.

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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Anonymous Coward, 11 Apr 2013 @ 10:13am

Re:
Let me do this for you:

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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Anonymous Coward, 11 Apr 2013 @ 10:17am

Re:
Well, isn't that only logical?

Why do you hate the fact that laws must be applied equally and fairly where they apply?
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kenichi tanaka, 11 Apr 2013 @ 10:17am

The DOJ had better watch it. If the DOJ starts targeting foreign companies, you better just toss diplomatic immunity for U.S. ambassadors right out the window.
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JEDIDIAH, 11 Apr 2013 @ 10:17am

We are not the global dictator.
Foreign corporations are by definition FOREIGN.

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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weneedhelp (profile), 11 Apr 2013 @ 10:18am

Re: Megaupload was doing BUSINESS in the United States.
" The Register has an entirely different slant on Megaupload than " LOL you mean another content provider had the same outlook as the MPAA? Go figure.
So much fail:
"The study adjusted its figures to account for the Christmas sales rush."
-
"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"."
-
OUT_OF_HIS_MIND strikes again.
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Anonymous Coward, 11 Apr 2013 @ 10:18am

Re:
...and considering some of the shit done in secret by said ambassadors....
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squall_seawave (profile), 11 Apr 2013 @ 10:20am

Re:
we need a process lets say i live in a country where is ilegal to sell pictures of cats in unnatural poses then a company in usa sells lolcats pictures via internet should those usa companies be liable?

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 Mighty Buzzard (profile), 11 Apr 2013 @ 10:24am

Eh, I'm not particularly upset by this request. With a colo server or two, it's quite possible to commit any number of crimes within the borders of a nation that you've never been to physically and have no one acting as a representative in.

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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Anonymous Coward, 11 Apr 2013 @ 10:24am

So they ignore the law in the first place when going after Mega Upload, which means they need to change the rule now why? We already knew it and other rules were meaningless if the government hates you and wants to shut you down and throw you in jail, all thanks to Mega Upload.
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John Fenderson (profile), 11 Apr 2013 @ 10:25am

Re:
If a corporation is not in the US, then whether or not it violates US law is irrelevant.
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John Fenderson (profile), 11 Apr 2013 @ 10:28am

Re:
With a colo server or two, it's quite possible to commit any number of crimes within the borders of a nation that you've never been to physically and have no one acting as a representative in.

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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DOlz, 11 Apr 2013 @ 10:31am

Nobody expects ...
The behavior and operating methods of the inJustice Department have been reviewed and approved by Cardinal Richelieu.
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PRMan, 11 Apr 2013 @ 10:31am

Re: Be careful what you wish for...
shut down (say) Goldman-Sachs for breaking their investment laws

Wait, so you're saying some good may come out of this after all?
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Anonymous Coward, 11 Apr 2013 @ 10:31am

("..and has caused damages in excess of $500 million to victims)"

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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Anonymous Coward, 11 Apr 2013 @ 10:33am

Re: Re: Megaupload was doing BUSINESS in the United States.
from the Entertainment Analytics page on the Carnegie Mellon website...

The creation of IDEA was made possible through a gift from the Motion Picture Association of America (MPAA)
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PRMan, 11 Apr 2013 @ 10:34am

Re: Re:
How is it "questionable" that Iran could bring criminal charges against a US company that doesn't have a registered agent or place of business in Iran? Businesses, like individual people, are fully capable of committing crimes that affect Iran, or might even be directed toward Iran, 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.

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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madasahatter (profile), 11 Apr 2013 @ 10:36am

Re: Re:
Or Stalin
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Anonymous Coward, 11 Apr 2013 @ 10:37am

Re:
so you think that companies/people outside the US that violate US laws should be held accountable in the US? what do you say about US companies/people that violate the laws of other countries being held accountable in those countries? i very much doubt if you agree to that, particularly if there were some sort of life imprisonment or capital punishment in the frame!
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Rikuo (profile), 11 Apr 2013 @ 10:38am

Re:
So back to the stupid analogies, of gun crime is somehow equatable with copyright?
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Anonymous Coward, 11 Apr 2013 @ 10:40am

"facilitated the distribution of illegally reproduced works throughout the United States"

They say that like he's already been found guilty and sitting in a prison.
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Anonymous Coward, 11 Apr 2013 @ 10:45am

Re:
We've been transported to a Cardassian justice system: it's not if you're guilty - rather, it's what you're guilty of.
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Anonymous Coward, 11 Apr 2013 @ 10:49am

What if we made it so there would have to be some form of "extradition" of the company? So there would have to be some showing of cause in their home country, BEFORE the company was forced to defend itself in a courtroom thousands of miles away in a country with unfamiliar laws and that it has no presence in.
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Anonymous Coward, 11 Apr 2013 @ 10:50am

Re: We are not the global dictator.
There is a problem in the international treaties forcing countries to comply to a set of rules, while a country outside of the treaty can house john doe and the "copy whatever you want"-busindess on the internet without any repercussions. I am not saying that this insanity is a solution.

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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Anonymous Coward, 11 Apr 2013 @ 10:52am

Re:
That would be "too hard to enforce".
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gorehound (profile), 11 Apr 2013 @ 11:00am

I am very proud to be an American ! But I do hate my Government more than anything.I am Fed Up with their Bull Shit and as far as I am now concerned these Bonehead Corrupted Politicians deserve the worst and they will get it.
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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Anonymous Coward, 11 Apr 2013 @ 11:10am

If the US can prosecute internet-based companies because US citizens use their services, then it can go the other way too. If a US company breaks Italian law, and Italians use the service provided, or even use Italian credit cards, Italy can go after them.

Think about how good an idea that really is before you argue for it.
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Roldy, 11 Apr 2013 @ 11:11am

Reverse Logic
So according to the DOJ, they can serve any foreign company if they violate US domestic law.

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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Anonymous Coward, 11 Apr 2013 @ 11:12am

Re: Megaupload was doing BUSINESS in the United States.
"Study: Megaupload closure boosted Hollywood sales 10%"

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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Anonymous Coward, 11 Apr 2013 @ 11:13am

Re: Re:
If a corporation is not in the US, then whether or not it violates US law is irrelevant.

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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Anonymous Coward, 11 Apr 2013 @ 11:14am

Re:
That's already the law and has been for many, many years. How big of a problem is it? Exactly.
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Anonymous Coward, 11 Apr 2013 @ 11:15am

Re:
"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?"

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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Anonymous Coward, 11 Apr 2013 @ 11:18am

Re:
" 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?"

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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Anonymous Coward, 11 Apr 2013 @ 11:19am

Re: Re:
AC-Idiot wants American corporations to be able to violate foreign law all they want without repercussions in a foreign court of law. The idea of Americans "getting away with it" gets him all excited. He hates the world and he hates the law.
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Anonymous Coward, 11 Apr 2013 @ 11:21am

Re:
You're analogies (or textbook examples) don't fit the circumstances, but I'll play. And since you don't seem to understand the full scope of your suggestions, I will tone it down for you to better grasp what YOU have implied to be acceptable.

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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Anonymous Coward, 11 Apr 2013 @ 11:22am

Re: Re:
"That's already the law and has been for many, many years. How big of a problem is it? Exactly."

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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Anonymous Coward, 11 Apr 2013 @ 11:22am

piss off DOJ, what the hell you used to be cool.
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madasahatter (profile), 11 Apr 2013 @ 11:24am

DOJ idiocy
If the DOInJ can sue/charge a non-US company with no physical presence in the US for violating US laws then the reverse could also be true. Shyster is as shyster does.
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art guerrilla (profile), 11 Apr 2013 @ 11:36am

Re: Re:
duh, 'cause of MOTHER FUCKIN' EAGLES ! !!
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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S7, 11 Apr 2013 @ 11:59am

"prosecute foreign organizations that engage in violations of domestic criminal law."

We don't like the laws in your country, so we'll enforce our own laws in YOUR country.
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Anonymous Coward, 11 Apr 2013 @ 12:08pm

Re: Re:
I like "son" better than "boy," but they're both kind of creepy. Do you really think you're that awesome?
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John Fenderson (profile), 11 Apr 2013 @ 12:08pm

Re: Re: Re:
I am not a lawyer. But I know enough to know that this is about sovereign rights, not jurisdiction within a given nation.

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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Anonymous Coward, 11 Apr 2013 @ 12:09pm

Re: Re: Re:
I tell you what. You stop calling me "boy," and I'll gladly engage you on the merits. Thanks.
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Josh in CharlotteNC (profile), 11 Apr 2013 @ 12:18pm

Re: Re: Re:
You don't have to be physically in a jurisdiction to violate the laws in that jurisdiction.

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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Anonymous Coward, 11 Apr 2013 @ 12:18pm

Re: Re: Re: Re:
My bad. I thought you were a lawyer. The issue here is service of process, not jurisdiction per se. There is jurisdiction here over the likes of Megaupload because they contracted with thousands of Americans, operated their business using many servers in the U.S., and caused harm to parties in the U.S. The issue here is how to serve Megaupload with process, which is necessary for a court to exercise jurisdiction over a defendant.

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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Anonymous Coward, 11 Apr 2013 @ 12:24pm

Re: Re: Re:
@PRMan, I guess you're assuming your counterexamples prove your point. But they don't. Iran or North Korea could, right now, bring criminal charges against US companies. So could China. Or France. So what? The question isn't whether other countries (even "bad" ones) can do it - they can if they want to. Rather, the question is, if a corporation violates US law by doing something in the US, can the company be criminally prosecuted for it? Under the reading of US law that Mega is currently advocating, a foreign company would have to choose to have a US office and agent, or else it would be immune from criminal prosecution in the US. Also, put aside the facts of the Megaupload case - you can dislike that case all you want, but the Rule 4 problem would apply not just to cases like Mega, but to all sorts of criminal cases involving foreign corporations.
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Anonymous Coward, 11 Apr 2013 @ 12:29pm

Re: Re: Re: Re:
If you're not in a particular jurisdiction, violating the laws of that jurisdiction is irrelevant, as they don't have jurisdiction over you.

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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Sunhawk, 11 Apr 2013 @ 12:35pm

The extent of a country's laws
So let's say one of the 'dry' Muslim countries has some citizens that purchase alcohol from a store in America that ships high-quality booze internationally.

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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Anonymous Coward, 11 Apr 2013 @ 12:41pm

Re: Re:
But they can, and they do. You may or may not like a particular case, or the country bringing it, but foreign countries can exercise their right to bring criminal charges against US companies for actions the US company takes that are directed toward or have effects in the foreign country. Whether US authorities will assist, or recognize the decisions of foreign courts, is an entirely different question.
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Anonymous Coward, 11 Apr 2013 @ 12:51pm

Re: Megaupload was doing BUSINESS in the United States.
Hey, let's just assume the study was completely right and run from there. How does that then show the DOJ's activity was proper? So what if hollywood made 10% more sales, criminal proceedings exist for criminals not for people who interfere with hollywood sales. But thanks again for aptly demonstrating that it's really about 'felony interference with a business model' and none of that other bullshit they spew.
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Anonymous Coward, 11 Apr 2013 @ 12:51pm

Re:
i wonder how many sharia laws i broke...

this morning..

this afternoon..

or tonight.
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Anonymous Coward, 11 Apr 2013 @ 12:55pm

Re: Re: We are not the global dictator.
No, there really isn't a problem outside of jurisdiction creep. What we need is for countries to stop trying to extend their jurisdiction beyond their borders full stop. We don't need to give them anything in exchange. We don't need to set up some international treaty on a minimum set of laws. We don't owe them anything.
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Anonymous Coward, 11 Apr 2013 @ 1:01pm

Re: Re: Re: Re: Re:
You spout this shit as if 'wrongdoers' is based on some common standard but it's not. In one country 'wrongdoing' is different from another. So this very much is about dragging one nations laws across the border by amending the criminal complaint with 'on the internet.' We've known for a very long time that international lines can put criminals (the kind that actually committed the crime in the jurisdiction where they are convicted) out of the reach of the law but we still don't rescind national sovereignty.
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Anonymous Coward, 11 Apr 2013 @ 1:03pm

Re: Re: Re: Re: Re:
States aren't sovereign nations you goal post moving asshole.
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Anonymous Coward, 11 Apr 2013 @ 1:05pm

Re: Re:
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.

@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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Anonymous Coward, 11 Apr 2013 @ 1:06pm

Re: Re: Re: Re: Re: Re:
Jurisdictions are jurisdictions. The concepts are the same.
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Anonymous Coward, 11 Apr 2013 @ 1:06pm

Re: The extent of a country's laws
The offender has to break the laws while inside the country. Megaupload's site is available in the US. He had servers in the US. He did financial transactions in the US.
Case is a slam dunk.
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Anonymous Coward, 11 Apr 2013 @ 1:12pm

Re: Re: Re: Re: Re: Re: Re:
No they aren't. The california court didn't have jurisdiction until the supreme court, a court with authority in both jurisdiction, told them so. There is no international analogue. The concepts are as different between nation and states in the us as they are between cities in the same state and between states.
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Anonymous Coward, 11 Apr 2013 @ 1:17pm

Re: Re: The extent of a country's laws
The US were the stupid fools to allow Megaupload to do business with US residents in the first place.
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Anonymous Coward, 11 Apr 2013 @ 1:18pm

Re: Re: Re: Re: Re: Re: Re: Re:
That's just incorrect. California had jurisdiction over the defendant from Florida. The defendant challenged this jurisdiction and lost. It's comparable whether that foreign jurisdiction is another state or another nation. If someone in Mexico defames Shirley Jones in California, the California courts would have jurisdiction there as well.
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Anonymous Coward, 11 Apr 2013 @ 1:20pm

Re: Re: Re:
So what you're saying here and elsewhere is we shouldn't be mad that they're trying to pretend the world is their jurisdiction we should be mad that they're wasting money and time pursuing a case they know will go nowhere because the ruling won't be enforceable. That makes me feel so much better.
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sorrykb (profile), 11 Apr 2013 @ 1:20pm

Re: We are not the global dictator.
Isn't that what drones are for?
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Anonymous Coward, 11 Apr 2013 @ 1:23pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I love how you say it's incorrect then repeat it back to be virtually verbatim only pretending that because that's the way the Supreme court ruled that must have been the way it always was and the Supreme Court had nothing to do with it and therefor it somehow applies in situations where not only does the Supreme Court not have jurisdiction but where this isn't even an analogue to the Supreme Court that could rule similarly.
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Anonymous Coward, 11 Apr 2013 @ 1:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I'm only telling you what every first-year law student learns in Civil Procedure. Have you read the Calder v. Jones opinion? I have. Several times. And lots of other opinions discussing jurisdiction. This is basic stuff.
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david, 11 Apr 2013 @ 2:03pm

Re: Megaupload was doing BUSINESS in the United States.
this, along with all USA surveillance to EVERYONE makes me very angry... what do you (USA) think, you are the owner of everything?

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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Josh in CharlotteNC (profile), 11 Apr 2013 @ 2:08pm

Re: Re: Re: Re: Re:
If you're in Florida and you defame someone in California, the courts in California can have jurisdiction over you.

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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Anonymous Coward, 11 Apr 2013 @ 2:14pm

Re: Re: Re: We are not the global dictator.
So the internet can be limitless, but laws can�t? I would say that is a recipe for tension, constant assaults from clueless politicians and a far worse jurisdictional creep as dictated by "job-creators". You need a way to stop/limit child pornography, illegal drugs (or not?), organized economic crime, damaging or criminal trojan/virus creators/users etc. etc.
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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Josh in CharlotteNC (profile), 11 Apr 2013 @ 2:15pm

Re: Re: The extent of a country's laws
Megaupload's site is available in the US.

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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John Fenderson (profile), 11 Apr 2013 @ 2:24pm

Re: Re: Re: Re:
Under the reading of US law that Mega is currently advocating, a foreign company would have to choose to have a US office and agent, or else it would be immune from criminal prosecution in the US.

I genuinely don't see the problem with that.
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John Fenderson (profile), 11 Apr 2013 @ 2:25pm

Re:
When was the DOJ cool?
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Anonymous Coward, 11 Apr 2013 @ 3:16pm

Re: Re: Re: Re: Re: Re:
Can you give a clear reasoning as to why these two statements are not in conflict with each other?

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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NakkiNyan, 11 Apr 2013 @ 3:20pm

Re: Megaupload was doing BUSINESS in the United States.
By your argument I am doing world wide business by supplying a script that runs the security check for ZFS file systems that could make deleted files unrecoverable.

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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JarHead, 11 Apr 2013 @ 3:27pm

Re:
Where have you been for the last, I dunno, 70yrs. Of course the US is the de facto world police. DOJ is trying to play nice, but that "effort" is not needed. Someone somewhere sometime break the whim of the overlord (read: US law)? Simple, either send in the guns discreetly or blow the SOB skyhigh, depending on the overlord's mood and desired effects.
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JarHead, 11 Apr 2013 @ 3:37pm

Re: We are not the global dictator.
Sez you. Nice ideal though, if it happen in the real world, especially with the US. For a system which says power is ultimately in the hands of the people, people seems powerless to reign in their government. Might as well tell the truth that democracy is dead (or never ever lived) and every nation in the world is a monarchy/oligarchy.
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Anonymous Coward, 11 Apr 2013 @ 5:20pm

Re: Re: Re: The extent of a country's laws
A site run entirely from within 1 country will be generally available to the entire world thanks to the way the Internet works.

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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Anonymous Coward, 11 Apr 2013 @ 5:46pm

Re: Re: Re: Re: The extent of a country's laws
"And a company can block its output to a country's IP address string if they choose to do so."

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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Anonymous Coward, 11 Apr 2013 @ 5:53pm

Re: Re: Re: Re: Re: The extent of a country's laws
So why don't the US block a foreign websites IP address if they have a problem with the website in question.

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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NakkiNyan (profile), 11 Apr 2013 @ 6:31pm

Re: Re: Re:
So, Should I get sent to stand trial in N. Korea because I said N.Korea sucks here in the US? What if I have consenting sex outside of marriage to an Iranian girl who moved here, should I be sentenced in an Iranian court? Should she be sent to Iran to be stoned to death because she dishonored her family back home?

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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Anonymous Coward, 11 Apr 2013 @ 6:43pm

Re: Re: Re: Re:
If you're in the U.S. and say that "North Korea sucks," North Korea would not be able to extradite you and whatever judgment they might get against you would not be enforced in the U.S. If you later traveled to North Korea, you might have to pay for your crime at that time since they've then got you. Just because you could "get away with it," it doesn't follow that you can't violate North Korean law from afar. It's not that the law extends past national boundaries, it's that you can violate the laws in a foreign nation despite not physically being in that nation. Your North Korea example is kind of silly because they aren't likely to bother with prosecuting you (in large part because they know it'd be futile), but theoretically you could violate North Korean law by posting on Techdirt. Take Megaupload for example. Dotcom can violate U.S. law by intentionally violating the rights of U.S. copyright holders. Since he had many connections in the U.S., and since he intentionally caused harm to people in the U.S., he can be tried here. They're attempting to extradite him now to stand trial. But most things like that aren't litigated, considering the cost and hassle of extradition.
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Anonymous Coward, 11 Apr 2013 @ 6:47pm

Re: Re: Re: Re: Re: Re:
Yes, what's wrong in one country may not be in another. But that doesn't mean that something that's a wrong in Country X cannot be prosecuted if done by a person in Country Y. Whether the wrongdoer can be extradited to stand trial in Country X, or whether the judgment can be enforced in Country Y, is a different issue than whether the courts in Country X can obtain a judgment against the wrongdoer.
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Andrew D. Todd, 11 Apr 2013 @ 6:48pm

The Justice Department's Sloppy Legal Craftsmanship.
I looked at the first two cases cited by the Justice Department opinion, and found that it fundamentally misrepresented both of them. This may be good enough for lawyers, but it would be considered shoddy workmanship in any liberal art. In particular, Fustel de Coulanges, the great French historian, had some fairly pungent things to say about such practices.

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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Anonymous Coward, 11 Apr 2013 @ 6:51pm

Re: Re:
It works both ways. If you're in the U.S. and you violate the laws in a foreign nation, you might get extradited and you might stand trial in the foreign nation. And if a foreigner commits an act that is a crime in the U.S., that foreigner might get extradited and might stand trial in the U.S. If the crime were so serious that capital punishment were possible, that, IMO, would only make their extradition all the more likely and rightfully so. For example, if a foreigner causes the death of an American on purpose, that foreigner should be extradited here to stand trial.
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nasch (profile), 11 Apr 2013 @ 7:01pm

Re: Re: Re: Re: We are not the global dictator.
You need a way to stop/limit child pornography, illegal drugs (or not?), organized economic crime, damaging or criminal trojan/virus creators/users etc. etc.

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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Anonymous Coward, 11 Apr 2013 @ 7:04pm

Re:
Mike Masnick wrote:

"... 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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Anonymous Coward, 11 Apr 2013 @ 7:22pm

Re:
Think what if Chinese police ask to prosecute a U.S. based company. They'll just say according to law U.S. citizen is immune to prosecution of foreign companies.

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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nasch (profile), 11 Apr 2013 @ 9:06pm

Re: Re:
Under this logic the US wouldn't have been able to go after Bin Laden.

Yeah, because that was the same as Megaupload.
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nasch (profile), 11 Apr 2013 @ 9:31pm

Re:
If the DOJ starts targeting foreign companies, you better just toss diplomatic immunity for U.S. ambassadors right out the window.

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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Sacredjunk, 11 Apr 2013 @ 10:06pm

Re: Megaupload was doing BUSINESS in the United States.
Two interesting points

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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Anonymous Coward, 11 Apr 2013 @ 10:14pm

Re: Re: Re: Re: Re:
I understand how you might think that way, especially if you're thinking of the Mega case, or don't trust DOJ. But try to think of a foreign corporation commuting crimes against Americans that you really do think are serious. Where the company does things in the US - sends its employees here to sell things, keeps money in banks and gets money from customers, etc. can you see how having a rule that says the company can't be prosecuted by the US simply because it doesn't have a registered agent might not be ideal? (Especially when the US constitution and international law don't require a rule like that?)
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G Thompson (profile), 12 Apr 2013 @ 12:07am

Re: Re: Re: Re: We are not the global dictator.
You are describing the already in place comity principals (reciprocity) that exists internationally when you have conflict of laws between foreign (and sometimes non foreign) jurisdictions.

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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That One Guy (profile), 12 Apr 2013 @ 12:12am

Re: Re: Re: Re: Re: Re: Re:
So you'd be looking at a sham court-case where the accused cannot defend themselves as they would be located in a different country, charged with violating laws that only apply in the country the case is brought up in, where any judgement is meaningless as it cannot be enforced, and all of this is costing the taxpayers large amounts of money, and those involved lots of their time.

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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G Thompson (profile), 12 Apr 2013 @ 12:17am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
You need to look up "Comity" and then you would understand that Foreign does not just mean another country.

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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G Thompson (profile), 12 Apr 2013 @ 12:23am

Re: Re: Re:
Actually if the possibility of a death sentence could be imposed even has the merest likelihood of being raised most countries (in fact I'd go out on a limb and say all) will absolutely deny extradition to the USA based on just that and so they should.

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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Marcel de Jong (profile), 12 Apr 2013 @ 2:10am

Re: Re: Re:
Stop chewing bubble gum, because that's illegal in Singapore!
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special-uninteresting, 12 Apr 2013 @ 2:12am

The Justice Department should not have any say on what and how law is defined as or enforced. If left to the JD or any bureaucrat/royalty/king/tyrant/elitist then there would be no rule except convenience. When executing constitutional Rights there is no convenience. Its not expected to be easy.

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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Mike Masnick (profile), 12 Apr 2013 @ 3:09am

Re: Re:
Under this logic the US wouldn't have been able to go after Bin Laden.

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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Anonymous Coward, 12 Apr 2013 @ 5:30am

Re: Re: Megaupload was doing BUSINESS in the United States.
The DOJ sees it as guilty until proven innocent.
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Anonymous Coward, 12 Apr 2013 @ 7:10am

Re: Re: Re: Re:
Merits? Right, which equates to a fat lot of nothing. How comforting.
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Josh in CharlotteNC (profile), 12 Apr 2013 @ 7:15am

Re: Re: Re: Re: Re: Re: Re:
Thanks for the analysis.

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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slander (profile), 12 Apr 2013 @ 7:42am

Re: Re: Re: Megaupload was doing BUSINESS in the United States.
The DOJ sees it as guilty until proven innocent.

The DOJ sees it as guilty.
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Anonymous Coward, 12 Apr 2013 @ 8:04am

Re: Re: Re:
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.

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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Anonymous Coward, 12 Apr 2013 @ 8:12am

Re: Re: Re: Re: Re: Re: Re: Re:
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."

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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Niall (profile), 12 Apr 2013 @ 8:24am

Re: Re: Re: Re:
So, rather than actually debate his points, you ad-hom him, showing your own bitterness.

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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Anonymous Coward, 12 Apr 2013 @ 10:26am

Re: Re: Re: Re:
The moment you get off your high horse, people might... wait, what was I thinking. There's no respect to be had for you.
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John Fenderson (profile), 12 Apr 2013 @ 10:43am

Re: Re: Re: Re: Re: Re:
If a company is sending or hiring people in the US, then the people they've sent/hired are subject to US law. So I still don't see the problem.

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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Anonymous Coward, 12 Apr 2013 @ 11:26am

Re: Re: Re:
Sez the angry hypocrite that spies on IP addresses...
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Josh in CharlotteNC (profile), 12 Apr 2013 @ 11:28am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
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.

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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Anonymous Coward, 12 Apr 2013 @ 11:50am

Re: Re: Re: Re: Re: Re: Re: Re: Re:
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.

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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Karl (profile), 12 Apr 2013 @ 12:20pm

Re: Re: Re: Re:
How sad that he can't have a productive discussion in the comments.

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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Karl (profile), 12 Apr 2013 @ 12:45pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
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.

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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Anonymous Coward, 12 Apr 2013 @ 1:40pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
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.

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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Anonymous Coward, 12 Apr 2013 @ 1:41pm

Re: Re: Re: Re: Re:
I'm in these comments making all sorts of substantive contributions. And you're doing what? Wondering if the U.S. will extradite you to Sudan? LOL!
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Anonymous Coward, 12 Apr 2013 @ 1:42pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Tell that to O'Dwyer. The person sending the files or assisting others in doing so commits an actionable offense as well.
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Anonymous Coward, 12 Apr 2013 @ 1:46pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Who gets to define "aimed your conduct"?

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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Karl (profile), 12 Apr 2013 @ 6:02pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Rojadirecta was a website that was used to violate U.S. rightholders rights.

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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Karl (profile), 12 Apr 2013 @ 6:05pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
It might technically be a crime in Sudan, but the U.S. wouldn't extradite you for that.

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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Karl (profile), 12 Apr 2013 @ 6:18pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Tell that to O'Dwyer.

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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DP, 13 Apr 2013 @ 1:16am

Re: Megaupload was doing BUSINESS in the United States.
In a word......rubbish! No, make that TWO words - twaddle! As usual, OOTB is a waste of space.
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Karl (profile), 13 Apr 2013 @ 4:54am

Re: Megaupload was doing BUSINESS in the United States.
Oh, and this PROVES why DOJ should have gone after Megaupload:

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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tqk (profile), 13 Apr 2013 @ 8:56am

Re: Re: Re: Re: Re: We are not the global dictator.

You need a way to stop/limit child pornography, illegal drugs (or not?), organized economic crime, damaging or criminal trojan/virus creators/users etc. etc.

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.

This question is what I'm thinking of too.
FTFA:

... 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.

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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nasch (profile), 13 Apr 2013 @ 11:56am

Re: Re: Re: Re: Re: Re: We are not the global dictator.
I totally agree. I think the problems come in when other countries cave in to US pressure when they really shouldn't, either in signing bad extradition treaties, or in particular extradition cases.
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SidGabriel, 15 Apr 2013 @ 12:52pm

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"??
I am not unreasonable. The DOJ can have that power if they give the same power to the growing list of foreign nations that have indicted Bush and Cheney for war crimes.

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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Anonymous Coward, 24 Apr 2014 @ 3:42pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
No, because while US politicians are as big a bunch of traitors as everyone else's, they haven't committed that particular bit of treason yet, so unlike many other countries you can't be extradited from the US without breaking a US law.
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Anonymous Coward, 16 Feb 2015 @ 10:47pm

There once was an average joe
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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