California AG Pretends Copyright Infringement Is Theft; Charges Streaming Site With Grand Theft
from the hmm... dept
I was a bit confused to see California Attorney General Kamala Harris announce that she, with the help of the MPAA, had broken up an "online piracy ring" that was streaming movies online. That's because Harris has no authority when it comes to copyright issues. Copyright is a federal, not state law, and copyright cases need to be in federal court. But that's not what happened here. Instead, she rounded up a trio of brothers, Hop, Tony and Huynh Hoang... and charged them with grand theft, conspiracy and receiving stolen property. I was wondering if there was any actual "theft" going on here, or if Harris is simply redefining theft to get around federal preemption rules for copyright infringement. From her statements, it sounds like a blatant attempt to get around federal preemption as a favor to the MPAA.“Digital piracy is theft. It is a serious crime that harms one of California’s most important economic engines – our entertainment industry,” said Attorney General Harris. “This case sends a clear message that the California Department of Justice will investigate digital piracy and prosecute violators to the fullest extent of the law.”Except that infringement and theft are two very different issues, which are taken care of under two very different laws. I know that the MPAA loves to call infringement "theft" but it does not make it legally "theft."
Separately, it's worth pointing out that the details of this case, once again show that the claims of people that various "pirate" sites are making tons of money doesn't have much support:
Over the 18 months of the website’s operation, the brothers earned approximately $150,000 in advertising revenue.So, 18 months, 3 brothers, $150,000. That's $50,000 per brother. Or, about $33,000 per year, per person, not counting expenses. If the sites were even remotely popular, most of that money went towards hosting. So, not exactly a huge moneymaker.
Either way, the bigger issue here appears to be the attempt by the MPAA and AG Harris to redefine copyright law as "theft" to avoid a federal case concerning copyright. That's an incredible attempt to change the meaning of the law, which one hopes a judge will toss out on preemption grounds. If these brothers actually did what they're accused of, why not go after them on copyright infringement grounds? It seems likely that the MPAA has been just waiting for a case like this to try to circumvent the basic tenets of copyright law, to pretend that laws on theft apply.
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Filed Under: california, copyright, infringement, kamala harris, preemption, streaming, theft
Companies: mpaa
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You pirate propagandists really aren't even trying anymore, are you?
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Not to pirate anything?
I am sorry but I can't stop breathing because it infringes some law.
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I can respect a paid shill; they do their job and get paid for it, and get paid for saying the dumbest arguments so long as it's flavored correctly. I have no respect for unpaid shills, like you, OOTB and HWNN. You essentially argue and flail about uselessly against someone like Mike, Timothy, Leigh and others , who actually do know how to debate, to argue, for what amounts to zero pay.
Now, I'm not suggesting you cannot defend something for zero pay -- I do as much quite a bit, but it's mostly limited to video games, books or even TV shows -- but when that company is so blatantly anti-consumer, so blatantly trying desperately to curb people's rights, and trying SOOO desperately to save their dying business model by sacrificing to Baphomet, I have to ask you.
Why do you settle for less?
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However, copyright law has become so perverted by those who use it just to make a free buck off other people's hard work (Hi RIAA!), that it's impossible to tell what it was supposed to be used for.
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What about giant evil multi-billion dollar corporation like Disney?
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If copyright law were being enforced, you might have a point. But since they weren't actually charged with copyright infringement, what's your point?
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If these brothers actually did what they're accused of, why not go after them on copyright infringement grounds?
do you not understand
he is objecting to trying to shoe horn copyright infringement into theft statutes in direct violation to supreme court ruling.
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> enforced.
Too bad that didn't actually happen in this case.
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The article is about some-one being charged with a crime they have not commited, because the AG doesn't have the power to charge them with what they ~may~ have commited.
This is not about copyright law being enforced, as it hasn't been, no charges of copyright violation have been laid.
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That really sucks for you, doesn't it Mike?
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http://en.wikipedia.org/wiki/Dowling_v._United_States_(1985)
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" The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud"
Thanks for finding that.
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They have NEVER said that you can charge someone under traditional regulations regarding theft rather than copyright...
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Did your little blog take a hit with all your NSA articles this week?
Throwing out some Friday red meat for your pirate devotees?
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Did your little blog take a hit with all your NSA articles this week?
Throwing out some Friday red meat for your pirate devotees?
He wouldn't be milking that NSA story so much unless he was getting the clicks. It's all about the clicks for Mikey. Truth be damned. But you're right, he throws in the occasional anti-copyright hate/FUD pieces to keep the pirates flocking. He caters to the pirates and he knows it, and he's too dishonest to ever discuss any of it without a bunch of weasel words. What a fake.
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I'd think that if all Mike wanted was clicks, he'd be writing about celebrity nipslips and the like. Writing about the NSA and copyright law doesn't seem like the sort of thing one writes about if you're just a traffic whore.
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His writing is aimed at the broad anti-IP, anti-government, lives-in-mom's-basement types. Seems clear enough to me that he caters to a broad audience and tweaks his style/subject matter to increase traffic.
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Maybe sometime he can explain how Techdirt gets favored status in Google search results...
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BIG GOOGLE AND BIG MIKE ARE IN CAHOOTS!!! THE SEARCH RESULTS DON'T LIE!!!
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Yeah, because that's where the money is. Are you insane?
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That's funny, because the usual response heard is that the general public wants tougher copyright laws and pirates are a mere minority. So which is it?
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Do not ever underestimate the ignorance of the public in such matters.
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An AG is meant to KNOW the law, they aren't meant to reinterpret it to suit their political ambitions or to help their friends. If they are infringing copyright the owners should charge them, but instead an AG who should know better has charged them with a crime they have not committed as a favour to his friends.
I hope this backfires and the AG gets the boot.
(I actually don't care either way on the three brothers, assuming they are eventually charged with the crime they are beleived to have committed - copyright infringement)
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And one of the many, many points that you will never address is the fact that intangibles can be the object of theft. Typically, the claims would be preempted, and we would call it by the specific name of infringement. But the fact remains that it's still a type of theft since theft is a very broad term. You, of course, can never discuss this on the merits. For some reason, you're too scared to admit even obvious truths if they cut against your mindless rhetoric. Total fake, Mikey.
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In law, "theft" is a very specific term. And copyright infringement isn't legally "theft". It's copyright infringement.
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No, they didn't.
The quote you're referring to is this one: "And deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft. See, e.g., 18 U.S.C. � 2319 (criminal copyright infringement); �1961(1)(B) (copyright infringement can be a predicate act under the Racketeer Influenced and Corrupt Organizations Act); �1956(c)(7)(D) (money laundering includes the receipt of proceeds from copyright infringement)."
That was from a concurring opinion by Justice Breyer - not the opinion of the court.
Furthermore, the statutes he quoted to support his (dicta) claim were all copyright infringement statutes. Not a one was a statute dealing with theft, conversion, or fraud.
On the other hand, the Supreme Court, when it decided exactly this issue, said explicitly that copyright infringment was not theft, and that people who engage in piracy cannot be charged under Federal theft laws:
Dowling's conviction under 18 U.S.C. 2314 was overturned.
So, you're 100% wrong: the Supreme Court said no such thing, and in fact explicitly said that the government cannot do exactly what the California A.G. is attempting to do in this case.
That really sucks for you, doesn't it, asshole A.C.?
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Re: Re: @ "interference with copyright does not easily equate with theft"
That's pretty explicit in the IsoHunt decision, even as minimized here by Mike:
http://www.techdirt.com/articles/20130321/12104822407/isohunt-still-guilty-contributory-infri ngem
And in ANY event, I think CA AG actions are soundly based in common law and morality. These grifters were diverting income that they had no part in creating and does not belong to them.
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Re: Re: Re: @ "interference with copyright does not easily equate with theft"
ISOHunt was found guilty of copyright infringement not theft.
We all want to see how the CA AG will spin that to make copyright infringement magically become theft.
The clear message here is that the CA AG is and idiot, trying to please its masters.
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Re: Re: Re: @ "interference with copyright does not easily equate with theft"
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Re: Re: Re: @ "interference with copyright does not easily equate with theft"
Even if they are (and I think they are not), it doesn't matter -- the courts rule on the basis of written law, not "common law" or morality.
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Re: Re: Re: @ "interference with copyright does not easily equate with theft"
I knew I wouldn't be disappointed. My reliable source of comic relief after a long day of work never fails me.
It's just unfortunate that "common law" is now essentially the center square of everyone's out_of_the_blue's absurd statement bingo card. You can only claim it once regardless of how many times it comes up.
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Re: Re: Re: @ "interference with copyright does not easily equate with theft"
Problem is, the only individual or group that has ever done anything remotely like that is the MAFIAA itself.
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Re: Re: Re: Re: @ "interference with copyright does not easily equate with theft"
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Dowling is from 1985.
Supreme Court Justice Breyer said "unlawful copying is no less an unlawful taking of property than garden-variety theft." Just like the OP wrote.
And in 2005.
Twenty years later.
You're a fucking idiot, Karl.
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I already covered Breyer's comment, dipshit.
Are you seriously suggesting that Breyer's intent was to overturn Dowling?
And I'm the fucking idiot?
Just like the OP wrote.
No, he didn't. He said that copyright infringement was "no different than garden-variety theft." Not that it was "no less" than garden-variety theft, but that they were one and the same thing under the law.
And he was doing it to justify the California A.G. bringing theft charges, not copyright infringement charges, against the site owners.
He is wrong, and an entire Supreme Court case that focused only on this specific issue showed that he is wrong.
Assuming "he" is not you, of course.
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LoL... fortunately, at some point, someone involved here is going to have to actually read said law.
Nigel
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Sure, it is possible for someone to get tossed in jail for several years for a certain amount level of "criminal" copyright infringement. However, it is not, nor should it ever be equated/confused with, theft.
No matter how badly the MPAA et al want to call it stealing in order to confuse Joe Public...
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hmph
Not at all surprising she got a years salary to most folks from the rubes in the entertainment industry.
Nigel
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So of course that's why they went to the trouble of running the sites, right Mike? They wanted to donate their time?
Actually the reality is you don't know for a fact what their hosting fees were. And you didn't try to find out. Because you're a blatantly dishonest slime ball that is under the delusion that people actually believe your bullshit.
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Until then, STFU.
Nigel
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You apparently wouldn't know the truth if it ran up to you, twisted your nipple, and called you Sally.
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IF you speak the truth on a strongly pro copyright blog and it doesn't fit into the MPAA/RIAA narritive your comment isn't seen AT ALL
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People in law enforcement are really getting desperate.
One can only hope that the law is followed and this nonsense gets thrown out of court.
Also copyright infringement a serious crime?
LooooooooooooooooooooooooooooooooooooooooooooL
Is it a bigger crime than tax evasion?
Creative accounting?
Lying to congress?
California AG really has its priorities straight.
She should be careful though, both actors that played the Joker died already, that role is cursed.
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Bonus: Partying with the glitterati afterward.
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Nope. He may not be looking great, but he's a hale and hearty 76.
But you're right in all else!
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Oh look, conclusory statements by the wannabe-pirate-lawyer Mike Milkman Masnick. Run us through the analysis, counselor. Does theft under California law have an extra element that would make it not preempted? Don't you think the California AG has some knowledge of how preemption works? Have you bothered to read the indictment? Do you even know what section they are charged under? Of course not.
Separately, it's worth pointing out that the details of this case, once again show that the claims of people that various "pirate" sites are making tons of money doesn't have much support: Over the 18 months of the website�s operation, the brothers earned approximately $150,000 in advertising revenue.
I love how Pirate Mike protects his kin by pretending that $150,000 over 18 months is not a lot of money. That's probably more than anyone in your fan club makes. Hilarious!
Either way, the bigger issue here appears to be the attempt by the MPAA and AG Harris to redefine copyright law as "theft" to avoid a federal case concerning copyright. That's an incredible attempt to change the meaning of the law, which one hopes a judge will toss out on preemption grounds. If these brothers actually did what they're accused of, why not go after them on copyright infringement grounds? It seems likely that the MPAA has been just waiting for a case like this to try to circumvent the basic tenets of copyright law, to pretend that laws on theft apply.
Give us the actual legal analysis, Counselor Mike.
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Runs and hides.
Every single time.
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You're delusional.
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I'm not being mature when I taunt Mikey-Poo. I'm shitting on him in his own house and he's too scared to even defend himself. It's awesome fun for me, but it's certainly not me being mature. Mike doesn't deserve maturity. He deserves ridicule and lots of it.
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Every single time."
So Mike, who posts under his real name every day, is "hiding", says his anonymous accuser.
Irony, thy name is AC...
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Nope. I've tried that hundreds if not thousands of times. Mike has proved beyond a reasonable doubt that he has no intention of discussing the stuff he writes about on the merits. All he gets now is my deepest contempt. If he wants me to stop attacking him, he needs to show me that there is even one honest cell in his body. I see no evidence of that.
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"it knocks the pieces over, craps on the board, struts around, and flies back to its flock to claim victory."
- Scott D. Weitzenhoffer
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Not once have you interacted with Mike, where you didn't insult him and lie about him.
Not once.
As usual, you're the only one here who doesn't have "even one honest cell in his body." You've proved this over and over and over again.
Enjoy your delusion that refusing to interact with a lying, petulant asshole is the same as refusing to discuss something "on the merits." I'm sure it helps you sleep at night.
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Masnick immediately runs away like a little girl as soon as he's confronted with real legal analysis. Every time.
And you know it.
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Not once have you interacted with Mike, where you didn't insult him and lie about him.
Not once.
As usual, you're the only one here who doesn't have "even one honest cell in his body." You've proved this over and over and over again.
Enjoy your delusion that refusing to interact with a lying, petulant asshole is the same as refusing to discuss something "on the merits." I'm sure it helps you sleep at night.
Oh, look. Marcus has a rival for the title of Head Suck-up. What an unctuous salad tosser you are Karl.
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You have??? I've never seen you try that even once. OK, I'll be fair, maybe once or twice a long time ago...
...but then, Mike did indeed try having a rational discussion with you of the very sort you claim that you can't get, but you rapidly devolved into your usual vitriol.
I'm pretty sure that's why Mike ignores you. You are incapable of have a rational discussion.
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Criminal copyright infringement may not be preempted
In New Hampshire v. Nelson, a 2004 NH state case and the most recent case I know in this area, a criminal conviction was upheld for "receiving stolen property" where the stolen property was a scan made of a photo.
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RE: NH v. Nelson
Not sure the same outcome would have occurred if the "trespass" had been digital, for example if he had simply forwarded photos to his home email.
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Yes, Mike, infringement IS a form of theft.
Evidently that a variety of acts exist which can all be called "theft" is too complex for Mike and the pirates.
This is all laid out in the IsoHunt case, which I thought Mike understood as HUGE defeat for the notion that infringement or even hosting infringed files IS a form of theft, but he simply doesn't learn.
http://www.techdirt.com/articles/20130321/12104822407/isohunt-still-guilty-contributory-infr ingement.shtml
(Note that at comment #4, I, ah, don't go into extraneous detail, just do some crowing. The fanboys can't stand it.)
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Re: Yes, Mike, infringement IS a form of theft.
IsoHunt was never found guilty of theft. (Nor even charged with theft.)
They were found guilty of civil copyright infringement.
They are not the same thing at all.
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Re: Re: Yes, Mike, infringement IS a form of theft.
They were found guilty of civil copyright infringement."
Certainly they are guilty of theft! Commercial infringement is a FORM of theft. They're gaining off someone else's intellectual property, which is DEFINED by ALL of copyright to BE theft!
You're just splitting hairs. Common law, in my opinion, directly equates commercial scale infringement under these circumstances with theft. Copyright exists precisely to prevent THIS specific TYPE of theft! -- I'm afraid YOU will never get that point, but it's perfectly obvious to anyone not trained in how to dodge the law, or seeking to steal what's clearly not theirs.
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Re: Re: Re: Yes, Mike, infringement IS a form of theft.
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Re: Re: Re: Yes, Mike, infringement IS a form of theft.
Not according to either the Federal statutes or the Supreme Court, it's not.
Common law, in my opinion, directly equates commercial scale infringement under these circumstances with theft.
Your opinion is wrong.
First, copyright law is not based on common law, as I've already made very clear to you:
http://www.techdirt.com/articles/20130412/16073622693/julie-samuels-favorite-techdirt-posts-we ek.shtml#c618
Second, even if you consider state statutes to be "common law," no state has ever equated copyright infringement with theft. They've always been considered two separate things.
One major difference is that theft laws are always criminal (either misdemeanors or felonies). Copyright infringement has always been primarily a civil infraction.
That's why IsoHunt was never found guilty of any criminal act. They only faced civil liability.
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Re: Re: Re: Re: Yes, Mike, infringement IS a form of theft.
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Another Dem bought off by Hollywood.
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And so it ends...
Pathetic. This is, however, the kind of thing that happens right before a massive change. The backlash from this will probably be extreme, if it gets to the media as it should.
Sorry, trolls, but AG's do not get to make up new definitions for old crimes for which they have no jurisdiction.
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Re: And so it ends...
The truth about streaming can be seen in the
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Re: Re: And so it ends...
Yes we are deep in prohibition where the Government actively fights against the mass will of the population. Their attempts to maintain control become ever more desperate as the World changes around them.
The truth about streaming can be seen in the RojaDirecta case when after 3 strikes they are still not out. The DoJ losing against them in US Court sure removes the "willful" aspect in any US business that follows RojaDirecta's lawful streaming example.
So now they try anything to censor and to contain people sharing media. They obviously cannot win against public demand for long.
The World is soon to change. Most people realise that Copyright has gone too far where it needs to be curtailed to prevent such abuses. Evidence shows that sharing is not economically harmful so why try to stop people's chosen freedom to enjoy entertainment?
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Creative accounting, imaginary property, imaginary harm, imaginary numbers, imaginary theft, and now creative prosecution.
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You know what is really theft? Copyright is theft. Theft of culture. Theft from the public domain.
Copyright is a very 20th century concept, a government granted monopoly that gives control of culture to a small group of people. It goes against everything that culture is about.
Music/literature/art was all created, enjoyed and shared freely for millennia before copyright came to be. We need some serious scaling back of copyright terms and we need massive expansion of fair use.
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Even Klobuchar's felony streaming bill never went that far. She was very careful to write her bill to where viewers of streams would not be committing a felony.
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Feeble
Sure enough this case will soon crash and burn the moment it is pointed out in Court that Copyright Infringement is not actually Theft. As a result trial in state Court is therefore denied being a Federal law.
Still the MPAA would be happy when their goal is to destroy where this case well highlights how well their propaganda works to fool the weak minded.
California may well need a new Attorney General when Kamala Harris clearly does not know her laws. Her and VP Joe Biden now have something in common... lack of brain cells.
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Re: Feeble
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Re: Re: Feeble
Megaupload was not charged with theft.
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Re: Feeble
Either that, or they have bought their own propaganda and really do think it is theft. They would certainly like it to be, as enforcement then becomes a matter for the police.
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Every pirate operator appears to have realized how important LLC's are, even the Prenda Dream Team are aware of that because they use the same legal gimmicks to stay in business, but the similarities end there, while nobody knows who the operators of Kickass torrents are everyone is clued as to who Prenda and their sudo names are.
Piracy it seems is unstoppable, will ootb and AJ put an end to this shameful state of affairs?
Do not miss the next episode on the Piracy Wars 6900 (read it like 69 double ohw)
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Come on
Seeing this tried as grand theft will be very interesting, and in California which is movie land, it's possible it might actually make it through the courts.
Can you imagine the egg on everyone's face around here when a court does find copyright violation to be theft? Damn, you guys would really tie yourselves in knots trying to get out of that one.
I cheer this case on, just to see Mike try to get out of the logical hole.
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Re: Come on
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Damn, Al Gore will be mad. They invented the internet before he did!
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Re: Re: Re: Come on
The Supreme Court ruled on all piracy in 1985, whether online or not.
And they ruled that copyright infringement is not "theft, conversion, or fraud," and that you can't be charged with any of those things for copyright violations.
They didn't have to rule on preemption, since Federal copyright laws have preempted state copyright laws since 1976. Meaning that if you infringed on any work that is covered by Federal copyright law, you can only be charged under the Federal copyright statutes.
But, of course, the California D.A. doesn't want to do that, because it would probably turn out like the myVidster case.
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I meant that the Supreme Court didn't have to decide it in any case, since it is a matter of black-letter law.
The court did not rule that copyright infringement was not "theft" as a normative matter.
I'm not sure what you mean by "normative matter" in this instance, since criminal acts must be explicitly defined by statute.
Criminal matters are not explicitly limited.
Where do you get that? Here is the relevant text from 17 USC 301:
There's no distinction made between civil and criminal laws. The only rights and remedies that are allowed, as a matter of black-letter law, are the ones granted in Title 17.
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17 USC 301 addresses the scope/type of rights that may be associated with state law, but it is not a jurisdictional statute. This is where 28 USC 1338 comes in with respect to civil actions.
Criminal matters are left dangling by the terms of the statute. There is case law out of the 11th Circuit (Crow v. Wainwright) that deals with a state's entitlement to prosecute matters that may be associated with materials secured by copyright law. Clearly 17 USC 301 presents a formidable hurdle based upon interpretive case law as represented by the Crow decision, but the scope of 301 is sufficiently "fuzzy" that states may be deemed to have some (currently unidentified) retained role.
Here we do not have any way of analyzing what the state is attempting to do without having in hand a reference to the state statute being asserted.
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I don't see how you could say it is not a "jurisdictional statute" when, quite clearly, its entire reason for existing is to preempt state actions. Every court that mentions it calls it "an explicit preemption provision" (or something along those lines).
There is case law out of the 11th Circuit (Crow v. Wainwright) that deals with a state's entitlement to prosecute matters that may be associated with materials secured by copyright law.
Wait... the case that ends with this quote?
Seems pretty clear-cut to me. I could hunt down other cases that said the same thing, if you want.
Can you find even one court that said that the State could prosecute for actions that were covered entirely under Federal copyright law? I've never heard of one.
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Had the statute been worded differently, the outcome may very well have been that such actions comprised murder, rape or illegal dumping.
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Whotf is paying $8000 a month for hosting?
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I suspect most of the large companies pay that or more a month. Amazon likely pays that much or more for the cost of the electricity to run their servers.
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The company I work for pays roughly �10,000 (around $16,000) per month for hosting around 30 dedicated servers on a colocated basis. A quick check on a randomly selected hosting site (Rackspace) shows one option of $1249 for a managed dedicated service with 2TB bandwidth included. It would be quite easy to top $8000 if you need beefy multiple servers with high bandwidth usage. Given that the site in question is a streaming site, that's certainly the case.
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Maybe that engine needs a tune up.
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Believe it or not: no. We're currently rolling in money.
http://www.nytimes.com/2013/05/26/us/californias-new-problem-too-much-money.html?_r=0
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Cuts in staff, services, etc. while this all important engine plays bookkeeping games to appear to be making nothing.
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Great new video game concept
Use your (in-game) hacking skillz to create botnets capable of sending SWAT teams to innocent family's houses (or for an extra special achievement, to the houses of relatives of IP trolls)!
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And when they came for me...
Except it's happening right here in my town.
This is a whole new level of terrifying.
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Maybe it was grand theft ...
It's possible these charges are not for the (possible) copyright infringment part of their activities.
Could be this is similar to the old "bust Al Capone for tax evasion" technique.
The article doesn't identify what actions were labeled "grand theft." Certainly Dodd does his best to imply that the infringement was the theft they're being charged with, but maybe he's just lying as usual.
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Re: Maybe it was grand theft ...
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