I do have a copy of one letter they were using. I also have screenshots of the claims they were making on their website before they made it non-public. If I can find them, I'll post them. As I recall, they strongly intimated that the accused could be liable for $150K, but they never directly said that.
One fact you should keep in mind is that USCG registered the copyright for the "Far Cry" movie. They can hardly claim they didn't know the ins-nd-outs of it. The claim here is that the registration was fraudulent, first of all, since the wrong date was intentionally used. And second of all, even if the registration was not fraudulent, the settlement letters indicated that all of the accused were possibly on the hook for statutory damages.
The problem is, statutory damages were not on the table for all of the accused, and some were actually only potentially liable for actual damages. By sending out letters making the accused think that they were facing statutory damages, USCG committed further fraud. I doubt USCG did any of this on purpose, but it's a pretty amateur mistake for a group that advertises themselves as copyright experts.
Most states just adopt the ABA Model Rules that I quoted as is. USCG could be subject to discipline in any jurisdiction where they are licensed to practice and also in any jurisdiction where the effect of their misconduct was felt. Since these settlement letters went out to many different jurisdictions, they'd be potentially liable in every single one of them.
I think this case ends at the fact that no prudent person would have thought he was actually invited to climb in the back door of the house and look around.
I don't know the facts of what the ad said, but I can't imagine it said anything that would give a reasonable person the idea they were invited to sneak in the back door for a look around.
This is going to be at issue if an example isn't made of these lawyers.
They can be censured, sanctioned, and/or disbarred for breaking the Model Rules by their state bar, regardless of where this class action goes, if anywhere.
Whether accurate or not this is what it says in paragraph 15 of the complaint:
15. That prior to and around the time of the incident which caused the injuries herein, the Trolley Brook Estates Subdivision was advertised as a new housing development that was open to the public.
He was apparently planning to argue that he wasn't trespassing because the advertisement made him an invitee. An invitee is a person who enters another's property by express or implied invitation for the purpose for which the land is held open to the public. He would have to show that the ad invited people to the development to inspect the homes that were being built. If he is an invitee, the land owner owes him a duty of due care to warn him of any dangers or to make the conditions safe if a warning would not suffice. If he's an invitee, he has a good case.
Now, if he's not an invitee, he's a trespasser. The land owner has no duty of reasonable care to a trespasser who is not known to the land owner, nor is there any duty on the land owner to discover any trespassers. If he's a trespasser, he has no case.
Thanks for the explanation, Mike. I do care about more than just the letter of the law. Perhaps that doesn't come through in the my posts, and perhaps it should. As a law student, I'm struggling to learn what the law actually is so I can then later use this knowledge to help people. If I believed someone's fundamental rights were being stomped on, I would be outraged. With these seizures, however, I don't see it that way. You do, and that's fine, but just because I don't agree with that doesn't mean there's something wrong with me. When I said you care about one thing, I meant you only seem to care about one side of the issue. I have never seen you have any sympathy or understanding for the other side. I know you're helping artists, and I respect you for that, but your focus is just narrower than mine.
One last round, then I have to quit. I'm in college full-time now, and don't have the time.
Very cool. I understand the being busy part. I have kids myself. During the day I watch my 2 year old and my 2 month old while my wife's at work. She comes home, I hand off the kids, and then I'm off to school for the evening. I'm taking 6 classes this semester. Finding quiet time to study is the hardest part for me. I'll be studying tonight until 2 or 3 AM probably. The middle of the night is the only time I get to really focus.
Do you mind me asking what you're studying?
Not 60 days. SIX MONTHS. That's how long it took for ICE to begin the forfeiture process against the first round of seized domains. As far as I know, the seizure orders were under seal until then. And as far as I know, not a single owner of the seized websites was ever contacted by ICE in any way.
That does seem like a long time, I agree. We really don't know why things were under seal for so long. My experience is that things just take time to work their way through court, and it's not because anyone is slacking and not doing their job. Quite the opposite. The courts and prosecutors are simply swamped.
Nobody with a potential safe harbors defense has ever had their domains seized ex parte. However, 512 says explicitly they're exempt from "all liability," so it makes sense for the government to have to demonstrate any liability, as part of its requirement to demonstrate that any crime has occurred at all.
They're exempt from all liability unless they've lost their safe harbor. If a site operator is liable for criminal infringement, that site operator has necessarily lost its safe harbor. The government did demonstrate criminal liability in the affidavit.
And I will not have a chance to dig up the cases that say agents have to overcome affirmative First Amendment defenses before seizure, sorry. (Keep in mind, though, that most First Amendment defenses are affirmative defenses, for example in libel or obscenity.)
It makes no sense that the agent would have to preemptively explain away possible defenses in the affidavit, especially a defense like safe harbor. As I've said, if the site operator is liable for criminal infringement, that operator necessarily has no safe harbor. Keep in mind too that copyright is treated differently than other First Amendment issues.
That is exactly what happened. Of course, that's not the only thing Heller says: it also says that the seizures must not have the effect of removing the allegedly infringing materials from circulation.
That may be so, but copyright is treated differently than obscenity and the material can be removed from circulation. From the caselaw I've read, not only could the domain name be seized, the servers themselves could be seized, and all without a prior adversary hearing.
They've been chomping at the bit to be able to contest the seizure orders. It's been, what, two months, and they haven't been allowed to do so. I don't share your lack of concern.
I know they will get their day in court. I know that for a fact, that's why I'm not concerned about it. I very much look forward to seeing how their case plays out. I very much look forward to the day I'm licensed to practice law so I can help people like them who are in a situation like this. Don't take my lack of concern about whether or not they get their day in court with a lack of concern about their plight. I think challenging these seizures is very important for all of us.
Thanks. I had seen that, as I went to forfeiture.gov to search for the seizure notices for those sites (I did not find them). I had assumed the rules only changed the means of publication from "newspapers" to "websites." I guess not. I still don't know if that's the correct rule to cite regarding seizures, since it's not mentioned in Title 17 (or the sections that Title 17 links to).
I'm not a procedural expert by any means, but I'm pretty sure that's the right place to look since that section address judicial in rem forfeitures, which is exactly what is happening here.
But if it is, pay attention to Rule G(4)(b)(i):
Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).
They have not done this for any of the seized domains.
I know that notice of the seizure was posted on forfeiture.gov for the tvshack.net et al. forfeitures from this past summer. Was not notice sent directly to the site operators as well? Once the complaint was filed in the court, the court would send notice to the defendants as a matter of standard operating procedure.
By the way - though I would never call you "depraved," I too share Mike's concern about your attitude. We've been arguing about the letter of the law, and not about whether it is just.
I appreciate that. Mike's right in that I am very interested in the arguments, doctrine, and analysis. But that's not all I'm interested in. I'm interested in justice for everyone: the rights holders, the government, the defendants, everyone. Mike only cares about one side of things, and that's fine, but that's not what I care about. To say I'm "morally bankrupt" is silly, and honestly, I think Mike just didn't want to debate me on the merits so he called me a name and ran off like a little child. Whatever. That's par for the course for Mike.
Frankly, some of these sites were intentionally used by the copyright holders themselves. They were growing musical culture, and fostering communities. They honored DMCA takedown notices, and believed they were following the law (and were possibly right). They do not deserve to be treated the same as organized criminals and entities that fund terrorists.
That's one side of the story. I'd like to see the actual evidence that was gathered in the investigation. I'd like to see both sides of this before I pick sides.
These seizures damage society far more than infringement ever could. Even if the sites are 100% guilty, the seizures are worse than the criminal activity itself. If the letter of the law allows this, then we need to change the law.
I don't know if the seizures are worse. I see these seizures as the government finally doing something to live up to its promise that it was going to fight piracy. I'm 100% with you on changing the laws if doing so would be better. I strongly believe in that in general.
Doing away with copyright altogether is throwing the baby out with the bath water. Labels aren't a bad idea. But a label operating in a manner that is not in the artists best interest is counter productive.
Right. If some artists are entering contracts where they transfer some or all of their copyright rights, and these contracts turn out to be "bad" for them for whatever reason, the solution isn't to take away their ability to transfer these rights. The focus should be on creating better contracts, not on taking away the ability to contract altogether.
I just feel so guilty about all of this. How about I forward all of my posts to you for revision/comment before I post them? Making you happy means everything to me. You, so important, so strong, so perfect, so awesome. God, I'm lucky to even be able to read your posts.
Life, liberty, and the pursuit of happiness, according to the Declaration of Independence. I would add to these, the right to property (real property, not thoughts), and freedom in thought and speech. Are these defended by the government? Yes, but they are not granted by the government. Can the government take them away? No. They can infringe upon them, in which case it is our duty to defend them, but the government cannot grant them or take them away.
Right. And none of those can be contracted away. Without government granted rights, there'd be no contracts. That was my point.
On the post: US Copyright Group Lawyers Suggest They're Allowed To Lie To People They're Demanding Cash From
Re: Re: Re: filing
On the post: US Copyright Group Lawyers Suggest They're Allowed To Lie To People They're Demanding Cash From
Re: filing
On the post: US Copyright Group Lawyers Suggest They're Allowed To Lie To People They're Demanding Cash From
Re:
One fact you should keep in mind is that USCG registered the copyright for the "Far Cry" movie. They can hardly claim they didn't know the ins-nd-outs of it. The claim here is that the registration was fraudulent, first of all, since the wrong date was intentionally used. And second of all, even if the registration was not fraudulent, the settlement letters indicated that all of the accused were possibly on the hook for statutory damages.
The problem is, statutory damages were not on the table for all of the accused, and some were actually only potentially liable for actual damages. By sending out letters making the accused think that they were facing statutory damages, USCG committed further fraud. I doubt USCG did any of this on purpose, but it's a pretty amateur mistake for a group that advertises themselves as copyright experts.
On the post: US Copyright Group Lawyers Suggest They're Allowed To Lie To People They're Demanding Cash From
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On the post: Politician Trespasses Into House Under Construction, Breaks Leg... Sues Owners
Re: Re: Re:
On the post: Politician Trespasses Into House Under Construction, Breaks Leg... Sues Owners
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On the post: US Copyright Group Lawyers Suggest They're Allowed To Lie To People They're Demanding Cash From
Re: Re:
They can be censured, sanctioned, and/or disbarred for breaking the Model Rules by their state bar, regardless of where this class action goes, if anywhere.
On the post: Politician Trespasses Into House Under Construction, Breaks Leg... Sues Owners
Re:
15. That prior to and around the time of the incident which caused the injuries herein, the Trolley Brook Estates Subdivision was advertised as a new housing development that was open to the public.
He was apparently planning to argue that he wasn't trespassing because the advertisement made him an invitee. An invitee is a person who enters another's property by express or implied invitation for the purpose for which the land is held open to the public. He would have to show that the ad invited people to the development to inspect the homes that were being built. If he is an invitee, the land owner owes him a duty of due care to warn him of any dangers or to make the conditions safe if a warning would not suffice. If he's an invitee, he has a good case.
Now, if he's not an invitee, he's a trespasser. The land owner has no duty of reasonable care to a trespasser who is not known to the land owner, nor is there any duty on the land owner to discover any trespassers. If he's a trespasser, he has no case.
On the post: US Copyright Group Lawyers Suggest They're Allowed To Lie To People They're Demanding Cash From
Rule 8.4(c): It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
Rule 4.1(a): In the course of representing a client a lawyer shall not knowingly . . make a false statement of material fact or law to a third person.
On the post: Politician Trespasses Into House Under Construction, Breaks Leg... Sues Owners
Re:
He didn't really think this one through, apparently...
On the post: Politician Trespasses Into House Under Construction, Breaks Leg... Sues Owners
What a dill-hole!
On the post: Karl's Favorite Techdirt Posts Of The Week
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On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re:
Very cool. I understand the being busy part. I have kids myself. During the day I watch my 2 year old and my 2 month old while my wife's at work. She comes home, I hand off the kids, and then I'm off to school for the evening. I'm taking 6 classes this semester. Finding quiet time to study is the hardest part for me. I'll be studying tonight until 2 or 3 AM probably. The middle of the night is the only time I get to really focus.
Do you mind me asking what you're studying?
Not 60 days. SIX MONTHS. That's how long it took for ICE to begin the forfeiture process against the first round of seized domains. As far as I know, the seizure orders were under seal until then. And as far as I know, not a single owner of the seized websites was ever contacted by ICE in any way.
That does seem like a long time, I agree. We really don't know why things were under seal for so long. My experience is that things just take time to work their way through court, and it's not because anyone is slacking and not doing their job. Quite the opposite. The courts and prosecutors are simply swamped.
Nobody with a potential safe harbors defense has ever had their domains seized ex parte. However, 512 says explicitly they're exempt from "all liability," so it makes sense for the government to have to demonstrate any liability, as part of its requirement to demonstrate that any crime has occurred at all.
They're exempt from all liability unless they've lost their safe harbor. If a site operator is liable for criminal infringement, that site operator has necessarily lost its safe harbor. The government did demonstrate criminal liability in the affidavit.
And I will not have a chance to dig up the cases that say agents have to overcome affirmative First Amendment defenses before seizure, sorry. (Keep in mind, though, that most First Amendment defenses are affirmative defenses, for example in libel or obscenity.)
It makes no sense that the agent would have to preemptively explain away possible defenses in the affidavit, especially a defense like safe harbor. As I've said, if the site operator is liable for criminal infringement, that operator necessarily has no safe harbor. Keep in mind too that copyright is treated differently than other First Amendment issues.
That is exactly what happened. Of course, that's not the only thing Heller says: it also says that the seizures must not have the effect of removing the allegedly infringing materials from circulation.
That may be so, but copyright is treated differently than obscenity and the material can be removed from circulation. From the caselaw I've read, not only could the domain name be seized, the servers themselves could be seized, and all without a prior adversary hearing.
They've been chomping at the bit to be able to contest the seizure orders. It's been, what, two months, and they haven't been allowed to do so. I don't share your lack of concern.
I know they will get their day in court. I know that for a fact, that's why I'm not concerned about it. I very much look forward to seeing how their case plays out. I very much look forward to the day I'm licensed to practice law so I can help people like them who are in a situation like this. Don't take my lack of concern about whether or not they get their day in court with a lack of concern about their plight. I think challenging these seizures is very important for all of us.
Thanks. I had seen that, as I went to forfeiture.gov to search for the seizure notices for those sites (I did not find them). I had assumed the rules only changed the means of publication from "newspapers" to "websites." I guess not. I still don't know if that's the correct rule to cite regarding seizures, since it's not mentioned in Title 17 (or the sections that Title 17 links to).
I'm not a procedural expert by any means, but I'm pretty sure that's the right place to look since that section address judicial in rem forfeitures, which is exactly what is happening here.
But if it is, pay attention to Rule G(4)(b)(i):
Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).
They have not done this for any of the seized domains.
I know that notice of the seizure was posted on forfeiture.gov for the tvshack.net et al. forfeitures from this past summer. Was not notice sent directly to the site operators as well? Once the complaint was filed in the court, the court would send notice to the defendants as a matter of standard operating procedure.
By the way - though I would never call you "depraved," I too share Mike's concern about your attitude. We've been arguing about the letter of the law, and not about whether it is just.
I appreciate that. Mike's right in that I am very interested in the arguments, doctrine, and analysis. But that's not all I'm interested in. I'm interested in justice for everyone: the rights holders, the government, the defendants, everyone. Mike only cares about one side of things, and that's fine, but that's not what I care about. To say I'm "morally bankrupt" is silly, and honestly, I think Mike just didn't want to debate me on the merits so he called me a name and ran off like a little child. Whatever. That's par for the course for Mike.
Frankly, some of these sites were intentionally used by the copyright holders themselves. They were growing musical culture, and fostering communities. They honored DMCA takedown notices, and believed they were following the law (and were possibly right). They do not deserve to be treated the same as organized criminals and entities that fund terrorists.
That's one side of the story. I'd like to see the actual evidence that was gathered in the investigation. I'd like to see both sides of this before I pick sides.
These seizures damage society far more than infringement ever could. Even if the sites are 100% guilty, the seizures are worse than the criminal activity itself. If the letter of the law allows this, then we need to change the law.
I don't know if the seizures are worse. I see these seizures as the government finally doing something to live up to its promise that it was going to fight piracy. I'm 100% with you on changing the laws if doing so would be better. I strongly believe in that in general.
...Anyway, have a nice winter.
And the same to you. Good luck in school.
On the post: Music Industry Trying To 'Store An Iceberg In The Sahara'
Re: To clear some stuff up.
Right. If some artists are entering contracts where they transfer some or all of their copyright rights, and these contracts turn out to be "bad" for them for whatever reason, the solution isn't to take away their ability to transfer these rights. The focus should be on creating better contracts, not on taking away the ability to contract altogether.
On the post: Music Industry Trying To 'Store An Iceberg In The Sahara'
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On the post: Music Industry Trying To 'Store An Iceberg In The Sahara'
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On the post: Music Industry Trying To 'Store An Iceberg In The Sahara'
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Right. And none of those can be contracted away. Without government granted rights, there'd be no contracts. That was my point.
On the post: Music Industry Trying To 'Store An Iceberg In The Sahara'
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On the post: Music Industry Trying To 'Store An Iceberg In The Sahara'
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On the post: Music Industry Trying To 'Store An Iceberg In The Sahara'
Re: Psuedo-Libertarian claptrap
Certain rights should be inalienable, period.
If creative rights are really so important, then perhaps they should not be so easy for rich and powerful middlemen to steal.
What you call steal, I call the conscious, willing choice to dispense with.
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