Larry Lessig Tells New Zealand Court That DOJ's Case Against Kim Dotcom Is A Sham
from the taking-it-up-a-notch dept
As Kim Dotcom's extradition case appears set to finally be heard (after many, many delays), Dotcom has brought in some interesting firepower. Presidential candidate and famed legal scholar Larry Lessig has submitted an affidavit that completely destroys the DOJ's case. He argues not only that Dotcom's actions do not amount to any sort of extraditable offense, but that they don't even seem to be against US law at all. If you've been following the case at all, you know that under the US/New Zealand extradition treaty, copyright infringement is not an extraditable offense. That's why the US has lumped in a bunch of questionable claims about "conspiracy" and "wire fraud." But most of those are just repeating the infringement claims in different ways. Lessig dismantles all of them and suggests the DOJ case is a lot of smoke and mirrors. His summary brings it all together:It is my opinion that the Superseding Indictment and Record of the Case filed by the DOJ do not meet the requirements necessary to support a prima facie case that would be recognized by United States federal law and subject to the US-NZ Extradition Treaty. An attempt has been made to extract facts from multiple sources and over a wide span of time, to organize a large number of otherwise disconnected facts by using systematic phraseology and to juxtapose phrases in order to create an impression of coherence and substance. However, the attempt fails to reach its goals and any impression of coherence or substance dissolves under examination. Insofar as they are alleged in the Superceding Indictment and the ROC, respondents’ actions were not prohibited by criminal statutes of the United States. Filings of the DOJ attempt to create a false impression of criminal guilt and are not reliable.Lessig's detailed analysis covers many of the same issues I raised just days after the raid on Dotcom's mansion and his arrest. Basically, it appears that the DOJ is trying to make up a form of criminal copyright infringement that is based on "well, Hollywood really dislikes him." A key issue, as we've discussed in the past, is that there is no such thing as secondary criminal copyright infringement. The Supreme Court, in the Grokster case, created a concept known as inducement for civil copyright infringement, but criminal copyright infringement cannot be expanded by the courts -- only by congress. Yet, the DOJ is trying to pretend that there is such a thing as secondary criminal infringement, despite it not being in the law.
... criminal copyright liability cannot be broadened by invoking civil concepts of secondary copyright infringement directly or under the guise of the general aiding and abetting statute, 18 U.S.C. § 2. See Sup. Ind. Counts Four, Five, Six, Seven, and Eight. The United States legislature previously removed “aiding and abetting” from the copyright act, evincing an intent to eliminate that form of liabilityHe further notes that the indictment and DOJ arguments repeatedly refer to the DMCA, but the DMCA is only for civil copyright infringement, not for criminal:
The DMCA is only a defense in the civil context because only civil indirect or secondary liability is possible under the common law. Common law liability principles cannot be extended to criminal liability, which must be specifically proscribed by statute. See Dowling v. United States, 473 U.S. 207, 213-214 (1985). Because there cannot be common law crimes under United States law, the DMCA further emphasizes that criminal indirect liability for copyright infringement does not exist by statute.And thus, Megaupload's "failures" to follow the DMCA cannot be the basis of criminal charges:
... allegations of defendant’s failure to maintain a DMCA policy or defects in a defendant’s DMCA procedures cannot be the basis of criminal copyright charges....And, of course, he points out that under the Sony Betamax case that confirmed VCRs were legal in the US, the standard the Supreme Court set up was if a technology had "substantial non-infringing uses," which Megaupload clearly had.
Lessig also points out something that should be pretty obvious, but is often forgotten: the US Copyright Act does not apply outside the US.
An important limitation on enforcement powers of the DOJ is the principle that the United State Copyright Act has no application outside of the territorial bounds of the US, and therefore there is neither civil nor criminal liability under United States law for acts of infringement taking place outside of US borders.And, yes, the DOJ points out that Megaupload had servers in the US, but as Lessig points out that's not enough under US law:
The Superseding Indictment does discuss the existence of Megaupload servers in the United States.... But the mere presence of data servers in Virginia does not establish that direct infringement took place there. See, e.g., CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 549-50 (4th Cir. 2004) (holding that direct infringement under the civil standard requires more than “mere ownership of a machine used by others to make illegal copies” and that there “must be actual infringing conduct[.]”); Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121, 131-32 (2d Cir. 2008) (direct civil infringement requires “volitional conduct,” not mere ownership of device used by others to infringe).That seems like a pretty big flaw in the DOJ's case.
The Superseding Indictment never states that any specific user, much less any of the criminal defendants, chose to upload or download any specific infringing work from within the United States.
Perhaps an even bigger flaw? The lack of any showing that any of the defendants engaged in all of the required elements for criminal copyright infringement:
the DOJ fails to show direct criminal copyright infringement on the part of Megaupload personnel or on the part of Megaupload cloud storage users. The allegations in the Superseding Indictment and the Record of the Case do not match up to all of the elements of offenses. Importantly, there is no showing that any specific Megaupload representative or third-party user had the requisite mens rea to willfully violate copyright law. There is an even more fatal failure to show that Megaupload personnel agreed with a third party user to commit such violations. An agreement requires communications between defendants and the user, not just discussions among Megaupload personnel and a general “environment of infringement.” Attempts to juxtapose pieces of allegations do not succeed in making even a single whole, unified criminal charge.As Lessig details, criminal copyright infringement requires willful infringement for the purpose of commercial advantage or private financial gain. The complaint does not do a very good job of showing the "willful" part. Just showing that the company was slow to take down content is not enough. In fact, Lessig points out, charges of criminal copyright infringement need to list out the actual works infringed and then show all the other necessary elements:
proof of charges of both Criminal Copyright Infringement and also Conspiracy to commit such crimes must identify specific copyrighted works on a work by work, link by link basis, and describe the who, what, when, where, why, and how to meet all the elements for each such instance and to examine fair use, amongst other things. The “willfulness” requirement means that a person must have had the specific intent to commit copyright infringement as to each individual work.And yet, the Dotcom indictment fails to do basically all of that.
As for the attempt to get around the fact that there is no secondary infringement in criminal law by saying, "oh, well, it's just aiding and abetting," that doesn't fly either. Yes, users may have willfully infringed, but the evidence is lacking that the Megaupload team did the same, and just "aiding and abetting" doesn't work:
Aiding and abetting requires a showing of “double wilfulness,” which is lacking in the Superceding Indictment and ROC. A vague charge of “making available” a copyrighted work under a theory of “Aiding and Abetting Criminal Copyright Infringement,” is insufficient. In my opinion the government has failed to allege sufficient facts that the Megaupload defendants shared in any alleged infringer’s criminal willful intent. Gestalt allegations that the Megaupload cloud storage system brought about the arrangment that made the vague criminal acts of the alleged infringers possible is insufficient “willfulness” as a matter of law. As discussed above, Megaupload did not exercise volitional control over user uploads, link sharing, and downloads.Basically, he's calling out the fact that the DOJ is picking and choosing different actions by completely different actors and trying to tie them all together to create all the elements for criminal copyright infringement. But you can't do that.
The Supreme Court of the United States has stated that the aiding and abetting statute converts an accomplice into a principal, but that aiding and abetting is neither a separate crime nor is it relevant to the distinct crime of conspiracy. See Pereira v. United States, 347 U.S. 1, 11 (1954) (“Aiding, abetting, and counseling are not terms which presuppose the existence of an agreement. Those terms . . . mak[e] the defendant a principal when he consciously shares in a criminal act, regardless of the existence of a conspiracy.”) (emphasis added). Therefore, allegations that defendants aided or abetted a crime of copyright infringement do not amount to an extraditable offense. The crime, if it exists, must be specifically shown.A similar argument dooms all the "conspiracy" charges. End users may have willfully infringed, but that doesn't create a "conspiracy" between them and the Megaupload team.
United States v. Hickman, 626 F.3d 756 (4th Cir. 2010), a decision by the Fourth Circuit Court of Appeals is particularly instructive. In that case, the court was asked to decide if a store that sold thousands of glass vials was engaged in a conspiracy to distribute heroin, since it was well known that such glass vials were used primarily to package heroin for sale. Id. at 767-73. The Fourth Circuit explained that merely selling the vials was not sufficient to demonstrate the crime of conspiracy without something more. Id. The court would have required that the defendant possess explicit knowledge of specific plans to distribute heroin in order to be convicted of conspiracy. Id. This is consistent with other Fourth Circuit decisions which generally require a "showing that the defendant knew the conspiracy's purpose and took some action indicating his participation." Chorman, 910 F.2d at 109.Lessig notes that while the record in the case shows lots of communication between Megaupload staff, it shows none between the staff and the users of the site who are actually doing the infringing. That's a pretty weak conspiracy.
As mentioned above, a member of the conspiracy must undertake some "overt act" which furthers the underlying offense of the conspiracy. Chorman, 910 F.2d at 109. Thus, in order to properly state a claim for conspiracy to commit felony copyright infringement, there must be an agreement between two individuals to commit that crime, and then one of the individuals, who is a party to the agreement, must commit an act in furtherance of that crime.
As discussed above, infringing acts are alleged to have been committed by unnamed Megaupload users. A crime of conspiracy requires an agreement with criminal infringers. No such agreement is shown.
there is no allegation of direct communication with the user, and no reason to believe that the Megaupload employees entered into a relationship with the user beyond a series of retail transactions regarding cloud storage space on the Megaupload leased servers.Lessig also rips apart the arguments for wire fraud, noting that they all seem to be based on the idea that Megaupload didn't abide by the DMCA (again a US law).
Alleged frauds revolve around Megaupload’s practices under the DMCA and around an “Abuse Tool” Megaupload provided to copyright owners or agents who wanted to deliver to Megaupload DMCA notices of infringing materials on the Megaupload site and automatically disable access to such materials. It is alleged that Megaupload made misrepresentations in connection with the Abuse Tool, promising to delete access to referenced materials while only deleting the referenced URLs and without deleting all other URLs in the database that pointed to such materials. It is further alleged that the Abuse Tool did not operate as represented, that deletions were delayed and that the site promised to terminate repeat infringers but failed to do so....Furthermore, Lessig notes that for there to be wire fraud, US law requires a scheme to defraud users and then the use of mail or wire in furtherance of that scheme. Yet the indictment is lacking in defrauded parties.
As mentioned above, the DMCA serves to explicitly limit the copyright liability of Internet service providers and to provide a “safe harbor” from copyright claims.... If an online service provider like Megaupload is noncompliant the result is loss of the civil safe harbor defense not a criminal fraud.
It is alleged that Megaupload received “advertising revenue as a result of the continued availability of files,” while never stating that the copyright holders themselves made any pay outs.... Thus, there is no allegation that the advertisers were ever lied to, deceived or misled; in other words, the party deceived and the party that lost property were two completely different individuals.And all of that dooms the wire fraud claims:
It is also alleged that Megaupload received money from users who purchased premium subscriptions.... However, as with the advertisers, there is no indication that the users were deceived or misled in any way.
Moreover, the DOJ must look at the monies actually received when charging the crime of wire fraud, and cannot look to any “intangible right” that may belong to the copyright holder. United States courts have explained that intangible rights cannot form the basis of a wire fraud charge. See United States v. Hilling, 891 F.2d 205, 208 (9th Cir. 1988) (reversing a mail fraud conviction based on intangible rights). Nor is a “license” a recognized property right. See United States v. Schwartz, 924 F.2d 410, 418 (2d Cir. 1991) (overturning wire fraud conviction because “[t]he [] licenses given appellants were merely the expression of its regulatory imprimatur, and they had no other effect as ‘property’”).
In sum, the DOJ only alleges that one party was deceived: the copyright holders.... However, that party cannot lay a claim to a recognized property right that Megaupload is alleged to have taken; at best the rights claimed would be the right to license their works, or similar intangible rights which cannot form the basis of a wire fraud conviction.Lessig also attacks the idea that Megaupload even violated the DMCA in the first place. As he notes, the law says a service provider needs to "reasonably implement" a DMCA policy, but leaves the interpretation of "reasonably implements" up to the courts. And the standard interpretation, from the Perfect 10 v. ccBill case is that it's reasonably implemented "if it has a working notification system, a procedure for dealing with DMCA-compliant notifications, and if it does not actively prevent copyright owners from collecting information needed to issue such notifications." And Megaupload had all of that.
Another defect in the DOJ approach is that it is contrary to the DMCA. The Fourth Circuit has repeatedly upheld the principal of statutory interpretation which holds that courts “must give effect to every provision and word in a statute and avoid any interpretation that may render statutory terms meaningless[.]” Scott v. United States, 328 F.3d 132, 139 (4th Cir. 2003). Here, in order to give proper effect to the DMCA, the wire fraud statute cannot be interpreted to criminalize Megaupload’s conduct.
The DOJ, instead, is rather incredibly arguing that because Megaupload did not immediately delete 100% of infringing files, it violated the DMCA and thus is guilty of criminal copyright infringement. That's stretching the laws way past breaking points in multiple directions.
The DOJ does not allege that Megaupload had no policy at all, nor does the DOJ allege that Megaupload “actively prevent[ed] copyright owners from collecting information[.]” Instead, the DOJ charges a much lower standard: that Megaupload failed to terminate 100% of all repeat infringers, ... and moreover, that this failure, in the face of Megaupload’s stated policy, was a misrepresentation sufficient to sustain a charge of wire fraud....Lessig also points out that the DOJ is just wrong on its argument that after receiving a notice on a file, Megaupload must delete all versions of that file. That's not what the law says at all.
The purpose of the DMCA is to prevent liability where a defendant has stated a policy and reasonably implemented it—not where a defendant has failed to terminate each and every repeat infringer. Indeed, the statute recognizes that service providers are not required to terminate all repeat infringers in order to comply with the DMCA (17 U.S.C. § 512(I)(1)(A)) or to remove their posted content. See e.g. Perfect 10, Inc. v. Giganews, Inc., 2014 WL 8628034, at *9 (C.D. Cal. Nov. 14, 2014) (“Giganews had no obligation to indiscriminately remove every post a repeat infringer ever posted and Perfect 10 may not shift its burden of policing copyright infringement to Giganews in the guise of a claim for direct infringement.”).
Were the DOJ able to simply charge defendants with a separate crime (in this case wire fraud) then the liability safe harbor becomes meaningless, and Scott v. United States is thus violated. As a result, it is improper to interpret the wire fraud statute as criminalizing Megaupload’s actions, and the proper interpretation is to give effect to the DMCA’s stated safe harbor provisions.
The DOJ appears to be asserting that an online operator who receives copyright take down notices identifying one URL must search for and delete all duplicate files in the system or be subject to a copyright or fraud claim. In my opinion the DOJ’s theory of copyright or fraud liability is erroneous.As he notes, the US courts -- particularly in the Lenz case -- have said that takedowns require looking at fair use. And if the DOJ's theory was accurate, that would be wiped out, because notices would be sent for files without any idea if they were fair use or not.
Megaupload reduced operating loads by “deduplication,” namely maintaining only a single copy of a file in its database and generating multiple pointers to such file. Each pointer identified an uploader of the common file. It is possible for one uploader to have a right to fair use of a copy of a file, e.g., a purchaser uploading a backup or an educational organization offering critical commentary, while other uploaders might have no such fair use right. It is contrary to the purpose of the DMCA that a fair use right would be violated though a take-down notice directed at another person’s wrongful use. If such a violation were to occur, the provider of the take-notice would be subject to liability under the DMCA (17 U.S.C. § 512(f)).
Such an approach can lead to mass DMCA 512(f) misrepresentation claims against the DMCA noticing parties.
There's a lot more in the document, but it basically picks apart the entire DOJ indictment, and points out that they're making up new criminal theories that they're not allowed to, and misrepresenting other claims at the same time. Thus, not only is it not clear that Dotcom did anything deserving of extradition, it's not even clear that he broke any laws at all.
Of course... whether or not the New Zealand court pays attention to any of this, remains to be seen -- but it is a strong argument from a well respected and knowledgeable source.
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Filed Under: criminal copyright infringement, doj, extradition, kim dotcom, larry lessig, new zealand, secondary infringement
Companies: megaupload
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Response to: Anonymous Coward on Sep 16th, 2015 @ 11:02am
*FTFU*
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Re: Response to: Anonymous Coward on Sep 16th, 2015 @ 11:02am
What the hell is Kim Dotcom getting but LOTS of due process paid for by the very crimes? You pirates just don't believe that copyright infringement is a crime.
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"You just don't believe that copyright infringement is a crime."
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Re: "You just don't believe that copyright infringement is a crime."
Logic. Try it some time.
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By your logic...
You can't logic.
Or rather you just don't care to.
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Re: Re: "You just don't believe that copyright infringement is a crime."
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Re: Re: "You just don't believe that copyright infringement is a crime."
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Re: Re: Response to: Anonymous Coward on Sep 16th, 2015 @ 11:02am
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Re: Re: Response to: Anonymous Coward on Sep 16th, 2015 @ 11:02am
That's exactly the point being made. Due process is what's preventing the DOJ's ridiculous case from being successful.
"You pirates..."
Try not to hurt yourself leaping to uninformed conclusions.
"...just don't believe that copyright infringement is a crime."
The copyright infringement that took place on MegaUpload was a civil matter, not a crime.
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Re: Re: Response to: Anonymous Coward on Sep 16th, 2015 @ 11:02am
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Re: Response to: Anonymous Coward on Sep 16th, 2015 @ 11:02am
Every time someone lays out specific actions, laws, and parties to show how something is or is not the case, you just "#he hate copyright".
Show which laws are to be enforced. You have a long list this time, so all you have to do is counter-argue each point. Go for it.
(And don't forget that civil law isn't "enforced" by LEOs, assuming that any such are transgressed in the first place by the actual named parties.)
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Anonymous Coward loves it when copyright law is enforced.
Or, for that matter, Nuremberg law.
Because, you know law.
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Re: Anonymous Coward loves it when copyright law is enforced.
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Re: Re: Anonymous Coward loves it when copyright law is enforced.
https://en.wikipedia.org/wiki/Nuremberg_Laws
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Re: Re: Re: Anonymous Coward loves it when copyright law is enforced.
But my point is this: Some laws are bad. Some laws are stupid.
With much credit going to The Mouse our current copyright laws are pretty deeply both.
And the MPAA / ICE raid on Dotcom was kinda brownshirtish.
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Re:
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No news here. Lessig the nutter is wrong again.
Attempt # 3! Masnick doesn't like people using his "intellectual property"!
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Re: No news here. Lessig the nutter is wrong again.
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Re: No news here. Lessig the nutter is wrong again.
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Re: No news here. Lessig the nutter is wrong again.
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Re: Re: No news here. Lessig the nutter is wrong again.
Another example is the following.
https://soylentnews.org/article.pl?sid=15/09/14/2131200
The comments are also worth reading but the point is that it seems this site was shut down with no trial. It's unclear whether or not this site complied with the DMCA or not, according to that blog a statement on the site offered a way for people to submit DMCA takedown notices but whether or not they followed through is another question. The RIAA and other sources claim this was an infringement site but, from my perspective (the perspective of someone that hasn't visited the site) I have no way of knowing.
and this is exactly why due process is necessary before things like this are taken down, so that the site can have a chance to put up a defense and so that there is a public record showing that a law has been broken before any legal punishment occurs. Court proceedings will be made public, the specific laws in question that were allegedly broken must be made clear and submitted to the court, evidence submitted to show that these laws have been broken must be submitted, the defense can have an opportunity to challenge these allegations, and the public can view that evidence for themselves since it's made public and the submitted evidence is independently reviewed (and to some extent verified) by a judge (a disinterested third party) at least for obvious problems. Instead we have sites being forced down with the only thing I have to go on in determining whether or not the site actually did anything illegal is hearsay. This is not acceptable.
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Re: Re: Re: No news here. Lessig the nutter is wrong again.
I lost a lot of respect when I realized it was predicated on false beliefs.
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Re: Re: Re: No news here. Lessig the nutter is wrong again.
Even inside the US, there is no legal requirement to comply with DMCA takedown notices. Companies do it because they get additional legal protections if they do, but it is not required.
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I generally like his stance on technology issues, however I cannot stand him for the rest of his ideas on social issues.
I simply cannot trust anyone that would be willing to enslave people physically with social policies but promise to set people free on the inter-webs.
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The Astroturfing is Strong with This One
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Re: The Astroturfing is Strong with This One
My only real gripe about Lessig is that in a highly visible copyright infringement case, he concentrated on his pet theories (that I agree with, incidentally), but neglected to cover his bases... and the court decided in a way that neatly sidestepped his main argument. Thus, a client was left found liable when a more complete defense might have found the other way.
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Re: Re: The Astroturfing is Strong with This One
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Re: Re: Re: The Astroturfing is Strong with This One
I believe that would be the MPAA vs 2600 case, right?
Not the original anonymous, but I believe 2600 lost that case because Lessig didn't cover the arguments the Appeals Court was looking for and instead fixated on something that they didn't care about.
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Re: Re: Re: Re: The Astroturfing is Strong with This One
I don't know which case the original poster is talking about myself, but I don't think it's that one.
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Re: The Astroturfing is Strong with This One
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Re: Re: The Astroturfing is Strong with This One
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Re:
Americans are about to see a huge chunk of their taxes paid out for this.
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There _could_ be an interesting discussion in the comments here ...
Great work everybody! Take a bow!
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Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: There _could_ be an interesting discussion in the comments here ...
But look at this. All but ONE of the 18 comments on this thread at this time are dedicated to the troll.
But, yea, I'm the bad guy for pointing out how pathetic that is. Yea, you're a genius.
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Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
There is very rarely any cognitive argument. It's more like an old junkie couple who have the same fight every day "you had more" "no you had more". "you're fucked" "you're fucked and wrong" "due process" "you're not censored" etc etc etc
I'd hate to think what a newcomer would think but it's almost certainly not "well that was a reasoned response to a differing opinion, I feel more informed and think that maybe that he's wrong",
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Re: Re: Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
The worst that's been happening is responding spam with spam, in which case, it's the onus on the asshole who started it.
There isn't cognitive argument because that's not what's being wanted, and to somehow use this to broadbrush everyone else as dumb regardless of whether they respond to him or not is pretty shortsighted.
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Re: Re: Re: Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
You see, based on a notion that there's not only an argument but that it's "ripped to shreds".
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Re: Re: Re: Re: Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
out_of_the_blue regularly claims that he's being censored, but the fact that people are responding to him is proof that he's not. It's the same "downvote martyrdom" mentality on Ars; if you say stupid things and get downvoted, you get to be absolved of all responsibility and criticism if you claim people will be downvoting you. Which is a dumb thing to parade around.
out_of_the_blue doesn't have an argument beyond pointless insults, but the fact that users regularly disprove him is, in fact, ripping him to shreds. He's not offering an alternative viewpoint for discussion; he's being petulant, annoying and contrary for the sake of being a jerk.
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Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: There _could_ be an interesting discussion in the comments here ...
Too late.
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Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: Re: Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: There _could_ be an interesting discussion in the comments here ...
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Re: Re: There _could_ be an interesting discussion in the comments here ...
But for mere appearances (because the only really lazy commenters here are the trollish sort, and anyone will actually open and read the comments) Techdirt could appease the conscience of free speech advocates by providing a fourth account setting to "never hide reported comments".
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Re: There _could_ be an interesting discussion in the comments here ...
Dang. One more and we could have made Star Trek cheesecake comments!
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Re: There _could_ be an interesting discussion in the comments here ...
bows
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That's no conspiracy at all, in fact. The word "conspire" literally means "breathing together". It calls to mind the idea of people speaking in hushed voices, leaning in so close that they're breathing in each other's breaths, so that their secrets will not be overheard.
If there's no secret planning, there's no conspiracy.
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You fail to mention that Lessig was paid to write this on Dotcom et al.'s behalf. It is not neutral.
I'd challenge you on the substance, but we both know you can't carry your side of the argument. Hence the huge cut-and-paste.
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Re:
In other words, "I don't have anything of substance to bring to the table, just insults."
Maybe you should just shut the fuck up then, huh?
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But the US government is? Are you kidding or really that dumb?
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Fortunately the New Zealand Courts are pretty independent and will resist Government pressure.
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Truth even if from a liar is still truth. In regards to this venue, it does not matter if Lessig was paid or just decided to do it out of his own desire and kindness.
Anyone that agrees with the behavior of the US or NZ in the dotcom case is supporting corruption.
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The same could easily be said of the DOJ being paid to shut Dotcom down on behalf of the copyright cartels.
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"I have been retained by the respondents’ (alternatively referred to as “defendants”) United States attorneys, Quinn Emanuel Urquhart & Sullivan LLP and Rothken Law Firm"
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That's a bunch of nonsense. A journalist being paid by their organization to cover a story, such as a storm or whatever, doesn't automatically make the journalist's opinion less neutral.
A journalist may write a column in favor or against something and still get paid by their news company regardless of what position they take.
Now that's not to say that news organizations aren't bias in terms of whom they hire. But perhaps journalists choose to work for organizations that hire people who hold their beliefs. Just like I would expect most ACLU or EFF lawyers would hold a specific viewpoint on some matters (or a specific range of viewpoints). It's not that the employees of these organizations are being pressured to hold a specific opinion. It's that they choose to work for organizations that are most aligned with the opinions they already hold. That doesn't mean that their opinions are any less 'neutral' in the sense that they are being pressured to hold those opinions.
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Re: Re:
That's a bunch of nonsense. A journalist being paid by their organization to cover a story, such as a storm or whatever, doesn't automatically make the journalist's opinion less neutral.
A journalist may write a column in favor or against something and still get paid by their news company regardless of what position they take.
Now that's not to say that news organizations aren't bias in terms of whom they hire. But perhaps journalists choose to work for organizations that hire people who hold their beliefs. Just like I would expect most ACLU or EFF lawyers would hold a specific viewpoint on some matters (or a specific range of viewpoints). It's not that the employees of these organizations are being pressured to hold a specific opinion. It's that they choose to work for organizations that are most aligned with the opinions they already hold. That doesn't mean that their opinions are any less 'neutral' in the sense that they are being pressured to hold those opinions.
A journalist is not comparable to a criminal defense attorney. Give me a break. An attorney is biased for his client. An attorney makes the best legal arguments that support his client's position. Journalists don't do that.
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Here, fixed that for you.
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You fail to mention that Lessig was paid to write this on Dotcom et al.'s behalf. It is not neutral.
I'd challenge you on the substance, but we both know you can't carry your side of the argument. Hence the huge cut-and-paste.""
Taken from Lessig's own weblog: "(Note: Contrary to some reports, and consistent with my view about academic independence, (see “Disclosure”) I was not compensated for my opinion.)" See http://lessig.tumblr.com/post/129276663677/kim-dotcom
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This is not true. He was not paid for it.
http://lessig.tumblr.com/post/129276663677/kim-dotcom
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Feel better?
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He's not like the lawyers advertising on Criagslist for work that will write anything that you pay them to.
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[Citation needed]
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Mic drop.
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We don't elect Judges for instance, and while they appointed by the Attorney-General, in reality the legal community has a huge say in appointments.
I'd be very surprised if any judge was pressured by the Government.
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Well all the publicity has got to be good for his presidential campaign.
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He just tore them apart. I shouldn't be surprised. The DOJ is basically a criminal organization at this point.
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Who are the trolls here?
Is the RIAA doing the Putin thing and hiring a troll army?
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Re: Who are the trolls here?
So tough to tell actual shenanigans from internet stupidity lately, though.
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That's what happens when you can't debate his points.
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I also think everyone can see that the candidate thing was a bit of a lark to raise awareness.
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Re: Re: Re: Who are the trolls here?
If anything, his running for the presidency is intended to shine a light on the absurdity that is the US electoral system. He wants to start the ball rolling and perhaps shame Congress into fixing the rest of its mess.
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Re: Who are the trolls here?
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Re: Who are the trolls here?
Sorry to burst your bubble.
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Priracy
But to say that media piracy hurts artists is like saying that raiding the Spanish silver train hurts the enslaved natives working the Spanish mines.
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Re: Priracy
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Re: Re: Who are the trolls here?
BS. How about a list of these artists? Why would they all post anonymously? And I presume these aren't who all sang a song supporting MegaUpload.
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So what you're saying is the trolls were the product of the delusions of terrorism apologists?
At last we agree on something.
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"Dotcom is a thug and you know it"
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So, if the New Zealand courts accept Lessig's arguments...
After all, it wouldn't be right to deny Hollywood campaign contributors justice and terrorists use the internet too......
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Re: So, if the New Zealand courts accept Lessig's arguments...
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I wish Lessig ran the DOJ
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Re: I wish Lessig ran the DOJ
Being "in charge of" the DOJ is an entirely different job than writing legal briefs. And analyzing cases is a lot different than formulating policy or justifying said policy. (For example of the latter, just look at some of the feeble justifications for panopticon surveillance, or "harsh interrogation" of terrorists.)
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Bad law after bad law.
Spandex, I guess.
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Eric Holder to Hollywood: Heck, I tried...
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Response to: Anonymous Coward on Sep 16th, 2015 @ 12:54pm
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Lessig Rules!
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Who worked as an average ho
He met up with blue
For his usual screw
And gave him an average blow
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The offence that matches the treaty is money laundering. There is no requirement here that the illegal act that the money laundering is based on be an indictable offence, only that the money laundering itself is in fact an offense. If you ONLY look at the copyright violations, Kim might have a case. But the copyright violations are just a regular crime, which may not by itself be an extradition case, but the money laundering and such clearly would be.
Moreover, Kim is AGAIN trying to get the case heard in NZ. It's very likely that the courts will shut him down VERY quickly at the start of this extradition hearing, and direct him only to address why the types of charges are somehow exempt from extradition.
Kim's a smart guy, but the NZ appear to be getting tired of his snarky bullcrap.
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OF course. That's the point that Larry Lessig is making: that the DoJ should put up its hard evidence or fuck off. Lessig has made that abundantly clear - that the DoJ is fudging on the issue because it doesn't believe it has a case.
So why put millions of taxpayer dollars on the line? Because this was never really about Dotcom. This was about terrorising people into compliance. And that is shameful.
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Lessig's defense is at least in part laughable because it makes a few basic misdirections he hopes nobody notices. As an example, he uses the civil standards for copyright infringement rather than the criminal ones. This is NOT a civil case. So that is off the list right away.
The lack of a specific US user is meaningless as well. All you need is the basics: Were the files available in the US (yes, the feds confirmed that in their case), were the files available in full only if you paid a premium membership (generally yes). Were those memberships available to US citizens (yes). Were sites owned and operated by Kim and his various companies promoting copyright violating material with hopes that people would buy membership to download them? Apparently Yes, and this is key: It shows both knowledge of the content as well as accepting paying from Mega for promoting it.
Lessig's problem here is that he is looking very narrowly at a single part of what is called the "Megaupload conspiracy" and ignoring all of the other moving parts.
Lessig and Dotcom want the case to be tried at the extradition hearing, and that should never happen. Extradition does not require proving your case beyond a reasonable doubt, only showing that the case exists, involves crimes that meet the standard of the extradition treaty (and money laundering is one of them), and that is about it. Everything else is razzle dazzle and an attempt to turn the extradition hearing into something it is not.
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Wow. You got that completely backwards. He is the one using the criminal standards. He's pointing out that the DOJ is applying the civil standards while arguing it's a criminal case. It's kind of astounding that you got this so wrong. It's almost as if you skimmed the document and didn't realize what was actually being said.
The lack of a specific US user is meaningless as well. All you need is the basics: Were the files available in the US (yes, the feds confirmed that in their case), were the files available in full only if you paid a premium membership (generally yes). Were those memberships available to US citizens (yes). Were sites owned and operated by Kim and his various companies promoting copyright violating material with hopes that people would buy membership to download them? Apparently Yes, and this is key: It shows both knowledge of the content as well as accepting paying from Mega for promoting it.
You're wrong. The elements for criminal copyright infringement in the US require an infringer in the US.
No offense -- and I know from years on this site that you're just trolling anyway -- but your analysis is 100% wrong.
Lessig and Dotcom want the case to be tried at the extradition hearing, and that should never happen. Extradition does not require proving your case beyond a reasonable doubt, only showing that the case exists, involves crimes that meet the standard of the extradition treaty (and money laundering is one of them), and that is about it.
This is the one point where you are partially correct. An extradition trial does not require a full trial on the case. But what you misunderstand, rather spectacularly, is that's NOT AT ALL what Lessig is doing here. He's pointing out that the things Dotcom did do not actually measure up to things that are extraditable offenses. He is not actually asking to try the case in New Zealand.
Once again, if you are serious and not just trolling, you should try reading the document, rather than misstating nearly everything in it.
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In politics, for instance, while running for election, one of the very purposes of political debates, interviews, discussions, and being questioned by the media is to see how informed a candidate is about a certain topic to determine their ability to do their job and to see if they can defend their stance. Being informed is a prerequisite to being able to defend your stance. It's important.
In this situation these shills come here on a message board intended to discuss, inform, and defend a position and they can't even bother to inform themselves of the issues before commenting. It doesn't make sense. If you come here to inform others of your opinion with the intent of persuading them to change their minds the very least you can do to be taken seriously is to make a tiny bit of effort to ensure that your opinion itself is an informed one. It's a very basic prerequisite. But they don't even seem to bother. They can't even be bothered to spend the time required to read the articles before commenting. It's an embarrassment to themselves and to their cause. It boggles the mind. Where do these guys come from?
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They're only here to be "shills" - to sling pointless and degrading insults, to attack the character of the author and the opinions of the website, to stir the pot and rally everyone against them, and then to act like they've been victimized for their ignorant and rude behavior. Their only guiding philosophy is that Techdirt is wrong no matter what, and rather than simply ignore it, they feel it must be destroyed.
The sad thing is it's likely been the same people doing this for many, many years. They come here daily to simply nag something they don't like. When I think of the energy they've wasted (and has been wasted as a result of them, including what I'm typing right now) it's phenomenal.
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And this is why no one believes you, bobmail.
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This case is an embarrassment, and yet we see them tripling down on it trying to salvage anything. They didn't pursue the banks when the bubble burst because the case would have been to hard to prove, I guess they didn't think about inventing "laws" to make it easier like they have here.
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Open-and-shut
Did he or did he not annoy big Hollywood? So why shouldn't the government do the job it is paid to do by its constituents, the established corporations?
And did he or did he not have considerable assets worth seizing under civil asset forfeiture rules (one cannot really call them "laws" since they don't involve any actual lawful process)?
So he is clearly guilty of parading money against the interest of the companies in charge of the Department of Justice. If that's not an open-and-shut case for the raison d'être of civil asset forfeiture rules, I don't know what is.
There really is no effective defense for such behavior in kangaroo courts.
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Their using their super secret corporate laws, shuuuushh, their secret.......and tend to change on a daily basis, shuuuuush
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I'm Calling for a Separation of Media and State
With the Sony hack and the Megaupload case I'm seeing too many signs that the government and media are tightly joined. Maybe more so than religion media should be separated from government, because it seems that only those favored by media get justice.
I would like to call it the Aaron Swartz constitutional amendment, because I think he saw the issue before I did.
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In the days of hunter-gatherer tribes, it was a useful instinct for fending off raiders.
Now it means that Joffrey and Cersei always have a minimum approval rating.
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Re: Re: I'm Calling for a Separation of Media and State
Since a Troll does not actually have any pertinent facts at his/her disposal, the best s/he can do is generally derail any good comments with claims of falsehood that then must be shot down one at a time, or detour people's attention away from good remarks by filling the space with crappy innuendoes that people feel obligated to correct, or sometimes, simply fill the blog with so much crap that folks just get tired of reading and wander off to another topic.
Where the best way to insure long memory of a comment, is to finish or follow with humor, the best way to insure short memory of a comment, is to follow it with a massive pile of stupid and irritating shit.
And no, the Russians do not have a patent on this crap. Trolling in its current form has been around since the days of 300 baud modems and baudot machines.
Under other forms, its been around forever, as it is always necessary for criminals of all stripes, to try and keep the general public from becoming aware of facts, by clouding the issue at every opportunity.
For example, take Super-Trolls like TV and the Truth Free Press, whose current job is to disseminate propaganda and misinformation on any topic that might upset any corporate or political apple cart.
Any organization that has shit to hide, will employ trolls in some form.
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