The response first complains about the method used to challenge the seizure (calling it "extreme"), leaving out the fact that the government left Puerto 80 with basically no other choice, given its earlier actions and failure to respond in a timely manner to requests from Puerto 80's lawyers.
I disagree. The method can correctly be called "extreme" because it's rare to give the alleged criminal back the thing you took away from him because there was probable cause to think it was used for crime. It only happens in the most extreme cases, and this case isn't one of them. They're not getting the domain name back, at least not until the actual forfeiture hearing.
That the domain name will probably be used for more criminal acts if given back will be the winning argument in this case. The fact that Rojadirecta set up new domain names and continued their alleged crimes shows that they have no intention of stopping.
I disagree that Rojadirecta was left with "no other choice." As mentioned in this brief, once Rojadirecta filled out the claim form on March 22, the government had 90 days to file the forfeiture complaint. They government filed the forfeiture complaint on June 22.
And this brings up another point--all of the whining about this being unconstitutional because it violates the Fifth Amendment Due Process Clause is just bunk! Rojadirecta isn't even claiming that.
What's come out from these briefs is that everything was done correctly procedure-wise. The government got a warrant to seize the property, the government posted notice in a timely fashion for both domain names seized, Rojadirecta filled out the necessary paperwork three weeks after the property was seized, and the government filed its forfeiture complaint within the 90 days provided by law.
There was no due process violation. If you guys admit that, I might tell you why I think the government might lose in the forfeiture proceeding. ;)
Thi s case is sort of an anomaly since there was a problem with serving the defendant properly. I don't read too much into the grant of fees to one defendant and the denial of fees to the other.
I'm waiting for a defendant to be awarded fees when there aren't any such problems. That will be much more noteworthy.
It was $381.50, which is 10% of $3815.00. I haven't read the filing yet (it won't load for me above), but I suspect the 10% figure is significant somehow.
I strongly suspect there will be many more judgments against Righthaven, and not just for attorney's fees for defending questionable copyright suits. I mean intentional torts, with Righthaven as the defendant. Not only will that wipe out whatever funds Righthaven may have (and I'm guessing they're all too ready to say they have $0 on paper), but they'll obviously go after those who employed Righthaven, MediaNews Group and Stephens Media. I suspect too that those employers will be writing some really big checks by the time this is all over.
I have to admit, watching Righthaven supernova is kind of fun.
I think the EFF's got this one right. Forcing someone to type their password into a computer to decrypt it is a testimonial act. That person will then face the cruel trilemma: self-incrimination, perjury, or contempt. The Fifth Amendment doesn't allow that.
Well thank you. I don't have a problem with this sort of multi-strike system for repeat infringers in general, but I would like to see a little more process for those accused. For instance, I believe you can't challenge anything until your fourth strike. That doesn't seem right to me. I should be able to challenge any strike. The $35 thing doesn't bother me. You get that back if you win. That seems fair. The limited number of defenses is ridiculous, and I think it's copyright misuse. As Mike pointed out, you can't even use the defense of public domain. That's unbelievable. The guilty until proven innocent thing doesn't bother me. You could say the same about traffic tickets. It's not that you're guilty, it's that there is evidence against you--evidence you can challenge. You're still presumed innocent.
Take, for example, that last one. Note that it doesn't say "work is in the public domain." It just says "work was published before 1923," meaning that the work is probably (though, with sound recordings, not definitely) in the public domain. Why not just have a defense that says "work is in the public domain"? There are works that were published after 1923 that are in the public domain -- including works that people put into the public domain, or other works that were published after 1923 and before 1978, which didn't have a copyright notice (among some other options). So why aren't those allowed as defenses?
The key to that is the lack of volitional conduct on the part of Hotfile since the copying on their system is done automatically.
As the court here notes:
Finally, the plaintiffs contend that they have alleged a volitional act because they allege that hotfile.com makes additional copies once the copyrighted material is uploaded to the server. This argument too fails, for courts have repeatedly held that the automatic conduct of software, unaided by human intervention, is not “volitional.” See CoStar, 373 F.3d at 550 (“[A]n ISP who owns an electronic facility that responds automatically to users’ input is not a direct infringer.”); Cartoon Network, 536 F.3d at 131 (“[A] significant difference exists between making a request to a human employee, who then volitionally operates the copying system to make the copy, and issuing a command directly to a system, which automatically obeys commands and engages in no volitional conduct.”); Parker, 422 F. Supp. 2d at 497 (“When an ISP automatically and temporarily stores data without human intervention so that the system can operate and transmit data to its users, the necessary element of volition is missing. The automatic activity of Google’s search engine is analogous. It is clear that Google’s automatic archiving of USENET postings and excerpting of websites in its results to users’ search queries do not include the necessary volitional element . . . .”).
I think at most--and at least--Hotfile is secondarily liable.
Not just via inducement, but also contributory and vicarious liability. The judge is allowing all three theories of secondary infringement liability to proceed. Any one alone will take out Hotfile, and I think they are probably liable for all three.
The judge did drop the direct infringement claim, but I disagree that it was a "key claim." Everyone knows the secondary infringement is where the argument really is.
The judge here did not grant the motion to dismiss for secondary infringement. The judge is satisfied that inducement infringement, contributory infringement, and vicarious infringement have all been sufficiently pleaded.
I wouldn't try to spin this decision too hard as a victory for Hotfile--secondary liability will be their downfall, IMO.
Apparent knowledge means imputed knowledge. It's what you should have known. It's what you would have known had you not turned a blind eye. It's willful blindness.
Voluntary when the US government brokered the deal...
First, a few things to recognize. The WH administration has a lot of people that are from the RIAA. Having them broker the deal is rather lopsided.
So what if the government brokered the deal. That seems like a good thing for the government to do.
This isn't here to trick you. It states that the incentive is to follow through with the 5th or 6th strike or go through a lengthy court battle, with the RIAA, where you might lose DMCA privileges, your top position as an ISP, among other goodies. Again, this is the part where I ask, what do you think these top six will do in their position? Give them a strike with a $35 fee to charge for their innocence or get caught in a court battle? That's the Catch-22. Screw the customer, it's a large Prisoner's dilemma.
I've explained this already. The test for whether an ISP loses their safe harbor for an insufficient repeat infringer policy is reasonableness. If their policy is reasonable before this agreement, it's even more reasonable after it. The EFF is spouting their typical non sequitur FUD, and you're eating it right up.
And again, this is based on allegations, not convictions. It's safe to say that most people will not pay attention the first two or three times this happens. If you've ever worked in retail, there are ways to get those strikes removed without the fee. Also, if you've looked at the Korean AG system and how it's kicked people off for accusations alone, you can tell this is a bad system in general. But don't take my word for it. Read the article yourself.
Just to add a few more details, other than IP addresses, what other evidence is being brought to the table? If anything, this is just a less expensive version of the RIAA's 2008 "sue em all" campaign but with more immediate consequences. Consequence being, if your area only has one broadband provider, and somehow you're linked by your ISP to a number at random, magically you're liable for strikes.
Of course there's no conviction because this isn't court. There is evidence generated by a verified system. It's not rocket science to figure out that a certain IP address was used to download a certain file. You guys will complain no matter what system is used, whether it's in court or not. Anything that dares to touch your beloved piracy is treated as taboo. Even Mike admits that "piracy is not OK." Of course, he is absolutely, 100% against anything that's done to stifle piracy, but that's another story.
You probably do a lot more than anyone else, along with disrespectful behavior. I'm not a fan when you throw your tantrums, and I try to answer your questions with respect without throwing out complaints.
LOL! Why would I whine? I've got the law and reality on my side.
Do you not think that's a little excessive to have over your head?
I do. It's no secret. I've said it before. Would you rather get strikes at your ISP or a federal lawsuit? Something's going to be done about piracy. That much is certain. What would you rather they do?
And no, a multiple strike system is not reasonable. I download from Jamendo.com. I use Kickstarter and fund projects. I play video games online and post them to the internet. I play WoW, and a few other games. Yet with one fell swoop because of an accusation, I could lose my internet because my IP address is linked to copyright infringement. For the Lulz. That's wrong on multiple accounts.
And how many notices have you triggered at your ISP with all that activity? I'm guessing none. Why do you think that you'll trigger notices now? Doesn't your ISP already have a notice system in place with the content industry? Mine does.
If there were a way to have the plaintiffs sue in civil court for their copyrights and bring valid proof, everything's alright. Including my ISP because I've found better alternatives sure as hell has me pissed at the entertainment industry for trying to control what I do online.
The problem of piracy is too widespread for civil suits to be a viable route. Your pirates friends can blame themselves for that. It makes sense to have a strike system. If you were looking at this from the position that piracy is a problem that needs to be addressed, it might make more sense to you.
I'm not admitting anything. If you want to ask me a question that pertains to the point I'm making in this thread, I'm happy to answer you. If you're going to act like a dick and demand that I prove all sorts of things that have nothing to do with my point, then I've no time for you. Your choice.
You're kind of all over the place, and it's hard to respond.
It's not a huge leap in logic. It's a valid point that the entertainment industry is pressuring the ISPs to become the police or lose the third party liabilities that have been enacted by the DMCA.
The ISPs already have repeat infringer policies in place. They are not going to lose the safe harbors they already have by modifying those policies pursuant to an agreement with the content industry. That makes no sense at all. This agreement only strengthens their safe harbors. How in the world could this agreement possibly negatively affect their safe harbors? It can't.
You're focusing solely on the termination plans rather than the actual position of the ISP should this become law.
This has nothing to do with becoming law, it's only a voluntary agreement between the ISPs and the content industry. Congress is not involved.
It's added pressure to begin censoring the net.
This has nothing to do with censoring the internet. This is about the details of the repeat infringer policies that the ISPs already have in place.
Should the ISP look like a bad guy and kick people off the net on allegations or open themselves up to liability for protecting customer's privacy? What do you think is going to happen?
Again, you don't appear to appreciate the fact that the ISPs already have repeat infringer policies in place pursuant to the DMCA. People can already get kicked off the internet for allegations of infringement.
You guys seem to be whining no matter what happens to infringers. You whine if infringers get sued in federal court. You whine if instead of getting sued they face a very reasonable multiple-strike system of mitigation measures. You'll apparently whine about anything that affects your beloved pirates. It's rather amusing that you all stick up for law breakers like this.
On the post: Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again
I disagree. The method can correctly be called "extreme" because it's rare to give the alleged criminal back the thing you took away from him because there was probable cause to think it was used for crime. It only happens in the most extreme cases, and this case isn't one of them. They're not getting the domain name back, at least not until the actual forfeiture hearing.
That the domain name will probably be used for more criminal acts if given back will be the winning argument in this case. The fact that Rojadirecta set up new domain names and continued their alleged crimes shows that they have no intention of stopping.
I disagree that Rojadirecta was left with "no other choice." As mentioned in this brief, once Rojadirecta filled out the claim form on March 22, the government had 90 days to file the forfeiture complaint. They government filed the forfeiture complaint on June 22.
And this brings up another point--all of the whining about this being unconstitutional because it violates the Fifth Amendment Due Process Clause is just bunk! Rojadirecta isn't even claiming that.
What's come out from these briefs is that everything was done correctly procedure-wise. The government got a warrant to seize the property, the government posted notice in a timely fashion for both domain names seized, Rojadirecta filled out the necessary paperwork three weeks after the property was seized, and the government filed its forfeiture complaint within the 90 days provided by law.
There was no due process violation. If you guys admit that, I might tell you why I think the government might lose in the forfeiture proceeding. ;)
On the post: Righthaven Accused Of Avoiding Paying Legal Fees Owed
Re:
On the post: Righthaven Accused Of Avoiding Paying Legal Fees Owed
Re: I do not think it means what you think it means
It is a legal term. I've not seen it used in other contexts.
From Black's:
disgorgement, n. (15c) The act of giving up something (such as profits illegally obtained) on demand or by legal compulsion. — disgorge, vb.
On the post: Righthaven Accused Of Avoiding Paying Legal Fees Owed
Thi s case is sort of an anomaly since there was a problem with serving the defendant properly. I don't read too much into the grant of fees to one defendant and the denial of fees to the other.
I'm waiting for a defendant to be awarded fees when there aren't any such problems. That will be much more noteworthy.
On the post: Righthaven Accused Of Avoiding Paying Legal Fees Owed
Re:
On the post: Righthaven Accused Of Avoiding Paying Legal Fees Owed
I have to admit, watching Righthaven supernova is kind of fun.
On the post: Justice Department Says It Should Be Able To Require People To Decrypt Their Computers
On the post: ISP's Five Strikes Plan: Railroading, MPAA/RIAA-Style
Re: Re: Copyright misuse
On the post: Judge Drops Key Claim In MPAA's Case Against Hotfile: Cyberlocker Didn't Directly Infringe
Re: Re:
Sure thing. I'm loving the RECAP plugin and archive. Saves me a lot of dough.
On the post: ISP's Five Strikes Plan: Railroading, MPAA/RIAA-Style
Good catch. That's copyright misuse as well.
On the post: Judge Drops Key Claim In MPAA's Case Against Hotfile: Cyberlocker Didn't Directly Infringe
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I was just surprised by it, since I hadn't read any of those other cases regarding volitional conduct and automatic copying systems.
Gotcha. I think a key case to read on this point is Netcom: http://www.law.cornell.edu/copyright/cases/907_FSupp_1361.htm
On the post: Judge Drops Key Claim In MPAA's Case Against Hotfile: Cyberlocker Didn't Directly Infringe
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As the court here notes:I think at most--and at least--Hotfile is secondarily liable.
On the post: Judge Drops Key Claim In MPAA's Case Against Hotfile: Cyberlocker Didn't Directly Infringe
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On the post: Judge Drops Key Claim In MPAA's Case Against Hotfile: Cyberlocker Didn't Directly Infringe
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The judge here did not grant the motion to dismiss for secondary infringement. The judge is satisfied that inducement infringement, contributory infringement, and vicarious infringement have all been sufficiently pleaded.
I wouldn't try to spin this decision too hard as a victory for Hotfile--secondary liability will be their downfall, IMO.
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
Re: Re: Re: Re: Re: Re: Re:
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
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On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
Re: Re: Re: Re: Re:
First, a few things to recognize. The WH administration has a lot of people that are from the RIAA. Having them broker the deal is rather lopsided.
So what if the government brokered the deal. That seems like a good thing for the government to do.
This isn't here to trick you. It states that the incentive is to follow through with the 5th or 6th strike or go through a lengthy court battle, with the RIAA, where you might lose DMCA privileges, your top position as an ISP, among other goodies. Again, this is the part where I ask, what do you think these top six will do in their position? Give them a strike with a $35 fee to charge for their innocence or get caught in a court battle? That's the Catch-22. Screw the customer, it's a large Prisoner's dilemma.
I've explained this already. The test for whether an ISP loses their safe harbor for an insufficient repeat infringer policy is reasonableness. If their policy is reasonable before this agreement, it's even more reasonable after it. The EFF is spouting their typical non sequitur FUD, and you're eating it right up.
And again, this is based on allegations, not convictions. It's safe to say that most people will not pay attention the first two or three times this happens. If you've ever worked in retail, there are ways to get those strikes removed without the fee. Also, if you've looked at the Korean AG system and how it's kicked people off for accusations alone, you can tell this is a bad system in general. But don't take my word for it. Read the article yourself.
Just to add a few more details, other than IP addresses, what other evidence is being brought to the table? If anything, this is just a less expensive version of the RIAA's 2008 "sue em all" campaign but with more immediate consequences. Consequence being, if your area only has one broadband provider, and somehow you're linked by your ISP to a number at random, magically you're liable for strikes.
Of course there's no conviction because this isn't court. There is evidence generated by a verified system. It's not rocket science to figure out that a certain IP address was used to download a certain file. You guys will complain no matter what system is used, whether it's in court or not. Anything that dares to touch your beloved piracy is treated as taboo. Even Mike admits that "piracy is not OK." Of course, he is absolutely, 100% against anything that's done to stifle piracy, but that's another story.
You probably do a lot more than anyone else, along with disrespectful behavior. I'm not a fan when you throw your tantrums, and I try to answer your questions with respect without throwing out complaints.
LOL! Why would I whine? I've got the law and reality on my side.
Do you not think that's a little excessive to have over your head?
I do. It's no secret. I've said it before. Would you rather get strikes at your ISP or a federal lawsuit? Something's going to be done about piracy. That much is certain. What would you rather they do?
And no, a multiple strike system is not reasonable. I download from Jamendo.com. I use Kickstarter and fund projects. I play video games online and post them to the internet. I play WoW, and a few other games. Yet with one fell swoop because of an accusation, I could lose my internet because my IP address is linked to copyright infringement. For the Lulz. That's wrong on multiple accounts.
And how many notices have you triggered at your ISP with all that activity? I'm guessing none. Why do you think that you'll trigger notices now? Doesn't your ISP already have a notice system in place with the content industry? Mine does.
If there were a way to have the plaintiffs sue in civil court for their copyrights and bring valid proof, everything's alright. Including my ISP because I've found better alternatives sure as hell has me pissed at the entertainment industry for trying to control what I do online.
The problem of piracy is too widespread for civil suits to be a viable route. Your pirates friends can blame themselves for that. It makes sense to have a strike system. If you were looking at this from the position that piracy is a problem that needs to be addressed, it might make more sense to you.
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
Re: Re: Re: Re: Re: Re: Re:
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
Re: Re: Re: Re: Re:
Snore.
On the post: Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?
Re: Re: Re:
It's not a huge leap in logic. It's a valid point that the entertainment industry is pressuring the ISPs to become the police or lose the third party liabilities that have been enacted by the DMCA.
The ISPs already have repeat infringer policies in place. They are not going to lose the safe harbors they already have by modifying those policies pursuant to an agreement with the content industry. That makes no sense at all. This agreement only strengthens their safe harbors. How in the world could this agreement possibly negatively affect their safe harbors? It can't.
You're focusing solely on the termination plans rather than the actual position of the ISP should this become law.
This has nothing to do with becoming law, it's only a voluntary agreement between the ISPs and the content industry. Congress is not involved.
It's added pressure to begin censoring the net.
This has nothing to do with censoring the internet. This is about the details of the repeat infringer policies that the ISPs already have in place.
Should the ISP look like a bad guy and kick people off the net on allegations or open themselves up to liability for protecting customer's privacy? What do you think is going to happen?
Again, you don't appear to appreciate the fact that the ISPs already have repeat infringer policies in place pursuant to the DMCA. People can already get kicked off the internet for allegations of infringement.
You guys seem to be whining no matter what happens to infringers. You whine if infringers get sued in federal court. You whine if instead of getting sued they face a very reasonable multiple-strike system of mitigation measures. You'll apparently whine about anything that affects your beloved pirates. It's rather amusing that you all stick up for law breakers like this.
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