At one point Joe I thought TF was only guilty of contributory infringement, but I came to realize that they are actually guilty of direct infringement.
The question seemed to rest on whether or not a site had the infringing material on their server. I don't think that matters.
Maybe so. It's certainly debatable. The caselaw I've read suggests that in-line linking and framing may give the appearance that the infringing content is being presented by the linking or framing site, but the underlying HTML tells the true tale of where the content is coming from. I believe the Ninth Circuit refers to it as the "server test." It doesn't matter where the content appears to come from, it matters where the content actually comes from. The case I'm thinking of was Perfect 10 v. Google/Amazon. I think the other argument is that if I'm going out of my to in-line link or frame the infringing content, it reaches a point where I may as well be hosting the material myself. The agent's theory isn't frivolous, IMO. Good point.
You're playing games. One minute you claim that this was necessary to keep it as evidence, and then you claim that it's not necessary. You do this a lot. One minute domain names can be seized because they're not blocking content, and the next the content on the site needs to be blocking. It's tough to take you seriously when you change your argument any time people pin you down.
I never said that it was necessary to seize the domain name to preserve as evidence. I said that seizing it does in fact preserve it as evidence. You are trying to put words in my mouth in order to discredit me. Show me exact quotes where I have contradicted myself. Otherwise, your claim is conclusory and unsupported.
Um. Wow. Ok. So why did you claim they could be direct infringers? Again, it's difficult to take you seriously when you make claims and when confronted say you haven't actually looked at the case. Shocking.
Here's what I said, "I agree that in the torrent-finder.com case, the site's operators probably were not direct infringers. I'm not sure you could say the same of the other seven dozen or so sites that had their domain names seized." As my quote indicates, maybe they can, maybe they can't. I don't know.
You don't find this troubling? You don't find it sickening that one would use a certain misinterpretation of the law to stifle speech, and then when later confronted on it, say he actually meant some other law that has a higher standard? Really?
The other crime doesn't have a "higher standard." You're making that part up. Sure, it is troubling that the agent thinks in-line linking and framing are the same as hosting the content itself. I never said it wasn't. I'm only pointing out the fact that it doesn't matter--not at this point of the proceedings. I'm sure agents make technical mistakes all the time.
The point was not how the First Amendment works, it's that you seem to think taking someone's domain is "incidental." Scary. And wrong.
The domain name is incidental to the speech on the server, legally speaking. I'm not sure how it could be anything but otherwise.
I have done no such thing.
If the only way a court could agree that it's not unconstitutional is by twisting principles and by taking indefensible positions, then how is it you think your mind is open on the subject? That makes no sense to me.
AJ, don't make statements that are obviously untrue. It looks bad on you.
How is what I said not true? Please explain. Without more, I have no idea what you mean.
Again, the fact that you are focused on the game of this rather than what's actually going on is, to me, sickening.
I'm aware of "what's actually going on," Mike. Don't be silly. Unlike you, I don't have a problem with the laws being enforced, even the ones I don't agree with.
Well, thanks for the insults. Let's just stick to debating the actual law, and not sling idiotic personal attacks, shall we?
Personally, I like you. I just don't think you have a grasp of the law. I barely have a grasp myself.
Granted, I may have quoted the wrong section. But regarding infringement, the whole of Chapter 46 is targeted towards seizing the same types of goods as is 15 U.S.C. 1116. That was my point.
I thought your point was that there is a 60 day limit to give notice.
As far as I can tell, they did not. Perhaps I missed it - wouldn't be the first time. Can you point me to any part of the affidavit that shows evidence that the sites did not obey DMCA takedown notices (or other safe harbor requirements)? If not, they haven't met their burden showing the sites were guilty of any infringement.
The agent recited facts to sustain probable cause under section 506. If there is criminal infringement, it is necessarily true that the safe harbors have been lost. The defendant can raise the safe harbors later as a defense. The agent had no duty to rebut this potential defense. It just doesn't work the way you think.
So, you admit that the point wasn't to "preserve jurisdiction." It was to remove it as "an instrumentality of crime" - i.e. prevent the public from accessing it.
Sounds a lot like "suppressing" to me.
In any case, I don't buy it.
The property can be seized because the it fits the definition of section 2323 as property used to facilitate criminal infringement. The statute requires no further justification, nor does it require that the seizure be for the purpose of preserving evidence.
I responded to Heller elsewhere. I think it's clear that it doesn't apply to these seizures.
Perhaps so, perhaps not. I think it's anything but "clear."
If the civil seizure laws in 983 don't apply, and the civil seizure laws in 985 don't apply, what civil seizure rules do apply?
I was wondering if you were going to ask that. Chapter 46 is the right place to be, it's just that the 60-day notice rule you were quoting doesn't apply to these seizures since these seizures are not nonjudicial. I think, but don't really know for sure, that since this is a judicial seizure, we're on the judge's time schedule. I see nothing in Chapter 46 that puts a deadline on the judge.
All censorship was "law enforcement exercising their mandate" at one point or another. That doesn't mean it's not censorship.
And you still haven't answered my question. If law enforcement isn't required to obey Section 512, why are those laws still on the books?
The question just doesn't make sense. If the site is criminal, it necessarily doesn't have safe harbor. Safe harbor is a defense to be raised by a defendant later. The government doesn't have to rebut a defense that hasn't been raised in an application for a seizure warrant. That makes no sense.
Again, easy enough to get an injunction to stop this. Or, if it was transferred to someone else to get it later. Remember, it's in control of Verisign and there's no way around that. So, no, your argument makes no sense. There is simply no reason to claim that seizing the domain "preserves evidence." It does not.
Under the statute (18 U.S.C. 2323) the property can be seized. Period. It is not necessary that it be seized for the purpose of preserving evidence. By being seized, the property is taken away from the criminals using it, and it no longer is being used to facilitate the commission of crime. Another way to describe that situation is "preserved." But you call it whatever you like.
Curious: can you explain how dajaz1 is a direct infringer? Thanks.
As I've mentioned, I'm not familiar with any case other than the torrent-finder.com case. I haven't followed the story of the blogs that were seized. Sorry.
As already discussed the standards to prove accomplice liability are much higher, and Agent Reynolds came nowhere close to showing probable cause of accomplice liability in the affidavit. You can't possibly support an effort that lets you prove a lower standard of probable cause, and when it's proven that there was no violation there, allow them to change it later, can you?
The agent purported probable cause of direct infringement, not accomplice liability. He walked through how he thought torrent-finder.com fulfilled the elements of criminal infringement under section 506. He assumed that in-line linking and framing were the same as hosting the content yourself. I believe he was wrong in that assumption. That doesn't render the seizure warrant ineffective. The technical merits are not decided in a warrant hearing. There is no lower standard of probable cause here as you suggest. Either the agent recited facts that are sufficient for probable cause, or he didn't.
No offense, AJ, but I am greatly troubled by your assertion that preventing any sort of speech is "incidental." That's not how the First Amendment works, and it bothers me that you think it does.
Be troubled all you want, I'm not offended in the least. Your wrong, though. The incidental effect of a statute or an action on speech is something that courts debate all the time. That's exactly how the First Amendment works.
It's not that I have a closed mind, it's that I respect the core principles of free speech and due process. I am also not saying that it's a foregone conclusion. I admit that people like yourself seem perfectly willing to twist the basic principles of the law to support indefensible positions, and sometimes the courts agree.
You contradict yourself. If you think the only way a court could agree that it's not unconstitutional is by twisting principles and indefensible positions, then you have already closed to your mind.
I have trouble respecting anyone who argues otherwise, as it makes me question their moral character. You seem so focused on the specifics of the rules and the wording therein, that you seem to miss on the main principles. To you, this all seems like a game. To me, it's about people playing games to rip up rather important principles on which this country was built.
I find it shameful.
I actually don't care which way this turns out as I think both sides have good arguments. I think your problem is that you start with your conclusion and then work your way back. I prefer to come into these things more neutral. If my indifference disgusts you, I'm OK with that.
"Wholly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons." ——United States v Stevens (2010) (quoting Cohen v California (1971), in turn quoting Winters v New York (1948))
You're not a lawyer for the EFF by any chance, are you?
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” ——Elrod v Burns (1976)
As “irreparable injury is suffered where monetary damages are difficult to ascertain or are inadequate,” Hohe, 868 F.2d at 73, preliminary equitable relief is unnecessary. Moreover, Voicenet/OTI do not show a chill on free expression caused by “direct penalization, as opposed to incidental inhibition, of First Amendment rights....” Id. at 72-73. The officials' refusal to return the arrays does not render Quikvue inoperative; that deprivation may be remedied with money damages. As such, Voicenet/OTI's First Amendment rights may be incidentally inhibited, but they are not at risk of irreparable injury.
Voicenet Communications, Inc. v. Pappert, 126 F. App'x. 55, 58 (3d Cir. 2005)
When you're alleging acts that have never been considered criminal before, and ignoring a whole section of law that states they might be innocent of any wrongdoing whatsoever, it seems to me that more than an "implication" is necessary.
Criminal infringement has been on the books for a long, long time. They are not ignoring any section of law that says they might be innocent--if you're committing criminal infringement, you necessarily have lost any safe harbor under section 512. The reason I used "implication" is because no criminal charges have been filed that I know of. The seizures necessarily imply that there is an underlying crime alleged. If anyone challenges these seizures, the government will have to prove the underlying crime by a preponderance of the evidence, I believe.
ICE did not seize "a single copy" of any infringing material. The seizures were not of any infringing material whatsoever, and did not enable ICE to do so. (Indeed, they did this before they even wrote the seizure affidavit.) In the Quikvue case, the computers were seized to determine ownership of the images - to link the images with a specific defendant's computer. ICE's seizures preserved no such link, and in fact destroyed it.
The case says that under Heller, a server suspected of being used for crime can be seized without an adversary hearing on whether any of the presumptively protected speech on the server is obscene, and even if there is also other protected speech on that server that is not obscene. Seems very applicable to me.
As is clear to apparently everyone but yourself, the primary purpose of the domain seizures was the "absolute suppression of the materials themselves." It's there in the affidavit, and it's clear from Morton's speech.
Nope. The domain name is being temporarily seized subject to a hearing on the merits. It is not being destroyed.
"Butcher" is a strong word. I read whatever you (or anyone else) sends my way and try to see if it's correct. That's why I like these discussions: I learn more.
And I've learned enough to see through these seizures. If even a lowly noob like me can do it, then there's a serious problem with these seizures.
Butcher is a strong word. I didn't use it carelessly.
18 U.S.C. Chapter 46 - exactly like 15 U.S.C. 1116 - was also intended to be used for impounding articles such as phonorecords or master tapes. You can't have it both ways: either the laws against seizing counterfeits apply (in which case the seizures are unwarranted), or else they do not (in which case the seizures are unwarranted).
The section you quoted specifically says it applies only to nonjudicial seizures. These were not nonjudicial seizures. Therefore your claim that notice was mandated by the section you quoted is false. Even if notice is required, the government can always ask the court ex parte to extend the deadline that notice must be given. Perhaps that's happened here. We would have no way of knowing.
If the sites actually complied with the law under Section 512, then yes, they are protected against charges of criminal infringement as well. Indeed, how can you be guilty of criminal infringement if you can't even be guilty of civil infringement?
So, in order to be criminally liable, the sites must first lose their "safe harbor" protections. That's the entire point: ICE never determined that they lost them in the first place.
Right, if they complied with the law under section 512 they wouldn't be liable. The accusation here is of criminal infringement. This necessarily means that the section 512 safe harbors would be lost. ICE did determine that the sites lost their safe harbors. That is the necessary implication, as I've indicated.
Except that those gTLD's are only administered by companies within the U.S.'s jurisdiction. You can't move a ".com" domain overseas; they still have to go through Verisign.
If ICE intended to keep the sites themselves within the U.S.'s jurisdiction, they utterly failed - since the seizures caused those sites (and others) to deliberately set up domain names overseas.
The seizure put the domain name into the district court's control, and it removed an instrumentality of crime from the criminal's control. That was the point.
And the actual activities that these sites engaged in have never been shown to be either direct infringement, or "aiding and abetting" infringement. They've only been considered secondary infringement in tort cases. If they are convicted of direct infringement or "aiding and abetting," they will be the first in history to be so.
We'll see exactly what the government argues when that day comes.
I don't know why you keep going on about this. The intended effect was to shut down the sites entirely. That is very, very clear from the affidavit, and from the video that some A.C. posted above. Morton actually gloats that most sites did not set up shop somewhere else; and he said he was very prepared to do "a Wac-a-mole operation" if they did.
The intended effect, as explicitly laid out in the affidavit, was to seize property used to facilitate criminal infringement under 18 U.S.C. 2323. That's exactly what was done. The incidental effect on the underlying site doesn't make the seizures illegal. The servers themselves could have been seized too.
And case law is very clear: When a First Amendment can even possibly be used as a defense against that crime, then "the effect on speech" is of primary importance. It is not "incidental and irrelevant." It is prior restraint.
The caselaw is clear, but your understanding of it is not. Such property can be seized. Read Heller.
The only other relevant section is Sec. 985, Civil forfeiture of real property. (And again, this section is obviously intended for "impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such." The fact that it mentions lis pendens and restraining orders, but not injunctions, should be a clue.)
That section does not give actual time frames (e.g. "30 days,"), so I assumed the lengths in 983 also applied. . . .
Real property means real estate, or what we civilians call "immovables." That section has absolutely no bearing on any of this. You're killing me with this stuff, Karl.
So, to sum up:
Congress passed laws specifically dealing with online infringement. ICE completely ignored those laws, and instead used laws designed for seizing physical property - laws which are prior restraint if they silence protected speech. They didn't even use the default seizure rules, but used a flimsy pretext to get the "nuclear option" of ex parte seizure. Then kept the seizure orders under seal from the defendants for months on end before giving the sites any opportunity to contest them. All to combat infringement that has never been considered criminal.
These were not federal agents making a good faith attempt to stop crime. This was a deliberate and egregious attempt to route around safe harbors and the First Amendment. It was censorship, plain and simple.
Congress very recently amended 18 U.S.C. 2323 to allow for the seizure of property used to facilitate criminal infringement under 17 U.S.C. 506. The office of "IP Czar" was also created with the mandate to enforce IP laws. It's far from "censorship, plain and simple." It's law enforcement exercising their mandate.
If the agents can't show that the act is even criminal, then I'd say it's hardly irrelevant.
I may not be a big-shot legal student like yourself, but I'd say that if a cop arrested someone for "conspiracy to commit emotional distress," that would be a problem.
Who says they can't show an underlying criminal act? The implication for each and every domain name that was seized is that the feds have evidence of a criminal act.
then make a case against an actual pirate. Sending out settlement requests knowing damn well that you are sweeping up the innocent because its cheaper to pay than to fight is plain wrong. Make a case with some due dilligance against a named defendant with more than just an IP address and a name and THEN make your offer.
How are they supposed to know which defendants are pirates and which are innocent? The only way to do more due diligence would be to sue the defendant and commence further discovery. This alone would cost the defendant more than the price of settling. How is that better?
Good deal. The more lawyers arguing the law, the better. :)
Huh? Can you explain how this evidence has been "preserved" in a manner that couldn't have been preserved without seizing the domains?
The domain name now safely resides in the control of the district court. Before it was seized, it could have been transferred to someone else by the alleged criminal. Now it can't.
Yes, well, that's a pretty big problem, isn't it? Given that the folks who operated these sites did not directly infringe on anyone's copyright, nor did were they involved in a conspiracy to infringe.
That's sort of a problem for your argument.
I agree that in the torrent-finder.com case, the site's operators probably were not direct infringers. I'm not sure you could say the same of the other seven dozen or so sites that had their domain names seized. I suspect that if torrent-finder.com fights this, the feds will be happy to change their theory of liability to one that fits the facts--accomplice liability. As far as conspiracy goes, the agent threw that out, but he never really explained it. The agent did say that he was only releasing the information he thought necessary to get the warrant, so until the rest of the investigation comes to light, we don't know what the feds have.
How? Seriously. How are they guilty of *direct* infringement?
As I indicated in the previous response, I agree that torrent-finder.com is probably not actually liable for direct infringement and the agent got that wrong. That doesn't mean that warrant is fatally flawed though. More importantly, that one case does in no way affect the legality of the seizures in general.
Why do you keep making this false claim? The affidavit itself indicated the intent was to shut down the site. Why do you always ignore this?
The statute says that any property used to commit criminal infringement can be seized. The domain name fits this definition, and that's what was seized. The effect on the site was incidental. I'm not ignoring it. I admit that the site was affected. I just don't see how that negates the authority to seize the domain name under 18 U.S.C. 2323. Besides, I think the servers themselves could also be seized.
AJ, you seem to be bending over backwards here to defend the indefensible. Can I at least ask a simple question: whether or not these seizures were legal, do you feel they were right? Think carefully.
I disagree that it's indefensible for the simple reason that it's not conclusive whether or not these seizures are unconstitutional under the 1st or 5th Amendments. You keep talking like that's a foregone conclusion, but it's not. I'm keeping an open mind. You're locked in to your position and you've got a closed mind.
To answer your question, I don't have a problem with the seizures, as long as they are legal.
Probable cause is to justify further inspection into the matter, not to justify taking action against the party involved. The findings of that further inspection can then be presented to the court so that the judge can determine if action needs to be taken. Probable cause itself doesn't warrant action against someone (ie: taking their car just for the sake of taking it), it just warrants further inspection into the issue.
For example, probable cause can justify wire taping someones phone. Saying that there is probable cause to justify wiretapping someone's phone is different from saying that taking their phone, or taking action against them, is acceptable. Only if evidence from the phone taps justify action against the person under surveillance can further action be taken.
That's just not true. Probable cause can and is the basis for seizing suspected instrumentalities of crime. A car or a phone (or a person for that matter) can be seized by a warrant supported by probable cause.
The purpose of allowing these seizures was so that the evidence can be used in court. There are many conditions that the above seizure had to meet to be legal, many of which aren't met by the actions of the department of homeland security. For example, the department of homeland security intended to stop the material from being distributed not to facilitate its presentation in court, but only for the sake of preventing others from seeing it.
That does not negate the fact that there was probable cause that the domain name was property used to commit or facilitate criminal infringement. It is subject to forfeiture and seizure on that fact alone. The effect on the underlying site, and the agent's statement about this effect, are irrelevant.
I've said this before, but "aiding and abetting" is a lot harder to prove than contributory or vicarious infringement. From the Criminal Resource Manual, 2478:
More than mere presence at the scene is required. [...] More is needed than simply knowledge that the crime was to be committed. [...] Mere participation is not enough proof that a defendant intentionally assisted in the ventures illegal purpose. [...] The key elements are the defendant's association with the venture, participating in it as in something he wished to bring about, and seeking to make it succeed. "Association" within the meaning of aiding and abetting means the defendant shared in the criminal intent of the principal. "Participation" means the defendant engaged in some affirmative conduct designed to aid the venture.
Absolutely zero of that could be applied to music blogs, forums, or search engines.
Who cares if aiding and abetting is more difficult to prove than contributory or vicarious infringement? It's irrelevant to the legality of the seizures. Regardless, the agent in his affidavit is only alleging direct infringement and conspiracy to infringe. He did not bring up accomplice liability.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
The question seemed to rest on whether or not a site had the infringing material on their server. I don't think that matters.
Maybe so. It's certainly debatable. The caselaw I've read suggests that in-line linking and framing may give the appearance that the infringing content is being presented by the linking or framing site, but the underlying HTML tells the true tale of where the content is coming from. I believe the Ninth Circuit refers to it as the "server test." It doesn't matter where the content appears to come from, it matters where the content actually comes from. The case I'm thinking of was Perfect 10 v. Google/Amazon. I think the other argument is that if I'm going out of my to in-line link or frame the infringing content, it reaches a point where I may as well be hosting the material myself. The agent's theory isn't frivolous, IMO. Good point.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I never said that it was necessary to seize the domain name to preserve as evidence. I said that seizing it does in fact preserve it as evidence. You are trying to put words in my mouth in order to discredit me. Show me exact quotes where I have contradicted myself. Otherwise, your claim is conclusory and unsupported.
Um. Wow. Ok. So why did you claim they could be direct infringers? Again, it's difficult to take you seriously when you make claims and when confronted say you haven't actually looked at the case. Shocking.
Here's what I said, "I agree that in the torrent-finder.com case, the site's operators probably were not direct infringers. I'm not sure you could say the same of the other seven dozen or so sites that had their domain names seized." As my quote indicates, maybe they can, maybe they can't. I don't know.
You don't find this troubling? You don't find it sickening that one would use a certain misinterpretation of the law to stifle speech, and then when later confronted on it, say he actually meant some other law that has a higher standard? Really?
The other crime doesn't have a "higher standard." You're making that part up. Sure, it is troubling that the agent thinks in-line linking and framing are the same as hosting the content itself. I never said it wasn't. I'm only pointing out the fact that it doesn't matter--not at this point of the proceedings. I'm sure agents make technical mistakes all the time.
The point was not how the First Amendment works, it's that you seem to think taking someone's domain is "incidental." Scary. And wrong.
The domain name is incidental to the speech on the server, legally speaking. I'm not sure how it could be anything but otherwise.
I have done no such thing.
If the only way a court could agree that it's not unconstitutional is by twisting principles and by taking indefensible positions, then how is it you think your mind is open on the subject? That makes no sense to me.
AJ, don't make statements that are obviously untrue. It looks bad on you.
How is what I said not true? Please explain. Without more, I have no idea what you mean.
Again, the fact that you are focused on the game of this rather than what's actually going on is, to me, sickening.
I'm aware of "what's actually going on," Mike. Don't be silly. Unlike you, I don't have a problem with the laws being enforced, even the ones I don't agree with.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Personally, I like you. I just don't think you have a grasp of the law. I barely have a grasp myself.
Granted, I may have quoted the wrong section. But regarding infringement, the whole of Chapter 46 is targeted towards seizing the same types of goods as is 15 U.S.C. 1116. That was my point.
I thought your point was that there is a 60 day limit to give notice.
As far as I can tell, they did not. Perhaps I missed it - wouldn't be the first time. Can you point me to any part of the affidavit that shows evidence that the sites did not obey DMCA takedown notices (or other safe harbor requirements)? If not, they haven't met their burden showing the sites were guilty of any infringement.
The agent recited facts to sustain probable cause under section 506. If there is criminal infringement, it is necessarily true that the safe harbors have been lost. The defendant can raise the safe harbors later as a defense. The agent had no duty to rebut this potential defense. It just doesn't work the way you think.
So, you admit that the point wasn't to "preserve jurisdiction." It was to remove it as "an instrumentality of crime" - i.e. prevent the public from accessing it.
Sounds a lot like "suppressing" to me.
In any case, I don't buy it.
The property can be seized because the it fits the definition of section 2323 as property used to facilitate criminal infringement. The statute requires no further justification, nor does it require that the seizure be for the purpose of preserving evidence.
I responded to Heller elsewhere. I think it's clear that it doesn't apply to these seizures.
Perhaps so, perhaps not. I think it's anything but "clear."
If the civil seizure laws in 983 don't apply, and the civil seizure laws in 985 don't apply, what civil seizure rules do apply?
I was wondering if you were going to ask that. Chapter 46 is the right place to be, it's just that the 60-day notice rule you were quoting doesn't apply to these seizures since these seizures are not nonjudicial. I think, but don't really know for sure, that since this is a judicial seizure, we're on the judge's time schedule. I see nothing in Chapter 46 that puts a deadline on the judge.
You know, the owners of the domain names can file to have them returned: http://www.law.cornell.edu/rules/frcrmp/Rule41.htm#Rule41_g
All censorship was "law enforcement exercising their mandate" at one point or another. That doesn't mean it's not censorship.
And you still haven't answered my question. If law enforcement isn't required to obey Section 512, why are those laws still on the books?
The question just doesn't make sense. If the site is criminal, it necessarily doesn't have safe harbor. Safe harbor is a defense to be raised by a defendant later. The government doesn't have to rebut a defense that hasn't been raised in an application for a seizure warrant. That makes no sense.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Under the statute (18 U.S.C. 2323) the property can be seized. Period. It is not necessary that it be seized for the purpose of preserving evidence. By being seized, the property is taken away from the criminals using it, and it no longer is being used to facilitate the commission of crime. Another way to describe that situation is "preserved." But you call it whatever you like.
Curious: can you explain how dajaz1 is a direct infringer? Thanks.
As I've mentioned, I'm not familiar with any case other than the torrent-finder.com case. I haven't followed the story of the blogs that were seized. Sorry.
As already discussed the standards to prove accomplice liability are much higher, and Agent Reynolds came nowhere close to showing probable cause of accomplice liability in the affidavit. You can't possibly support an effort that lets you prove a lower standard of probable cause, and when it's proven that there was no violation there, allow them to change it later, can you?
The agent purported probable cause of direct infringement, not accomplice liability. He walked through how he thought torrent-finder.com fulfilled the elements of criminal infringement under section 506. He assumed that in-line linking and framing were the same as hosting the content yourself. I believe he was wrong in that assumption. That doesn't render the seizure warrant ineffective. The technical merits are not decided in a warrant hearing. There is no lower standard of probable cause here as you suggest. Either the agent recited facts that are sufficient for probable cause, or he didn't.
No offense, AJ, but I am greatly troubled by your assertion that preventing any sort of speech is "incidental." That's not how the First Amendment works, and it bothers me that you think it does.
Be troubled all you want, I'm not offended in the least. Your wrong, though. The incidental effect of a statute or an action on speech is something that courts debate all the time. That's exactly how the First Amendment works.
It's not that I have a closed mind, it's that I respect the core principles of free speech and due process. I am also not saying that it's a foregone conclusion. I admit that people like yourself seem perfectly willing to twist the basic principles of the law to support indefensible positions, and sometimes the courts agree.
You contradict yourself. If you think the only way a court could agree that it's not unconstitutional is by twisting principles and indefensible positions, then you have already closed to your mind.
I have trouble respecting anyone who argues otherwise, as it makes me question their moral character. You seem so focused on the specifics of the rules and the wording therein, that you seem to miss on the main principles. To you, this all seems like a game. To me, it's about people playing games to rip up rather important principles on which this country was built.
I find it shameful.
I actually don't care which way this turns out as I think both sides have good arguments. I think your problem is that you start with your conclusion and then work your way back. I prefer to come into these things more neutral. If my indifference disgusts you, I'm OK with that.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re:
Generally I agree with those guys, but —on occasion— I have had some memorable arguments with the EFF'ers.
Sounds like fun to me. :)
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re:
You're not a lawyer for the EFF by any chance, are you?
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Voicenet
Voicenet Communications, Inc. v. Pappert, 126 F. App'x. 55, 58 (3d Cir. 2005)
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Criminal infringement has been on the books for a long, long time. They are not ignoring any section of law that says they might be innocent--if you're committing criminal infringement, you necessarily have lost any safe harbor under section 512. The reason I used "implication" is because no criminal charges have been filed that I know of. The seizures necessarily imply that there is an underlying crime alleged. If anyone challenges these seizures, the government will have to prove the underlying crime by a preponderance of the evidence, I believe.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Voicenet
The case says that under Heller, a server suspected of being used for crime can be seized without an adversary hearing on whether any of the presumptively protected speech on the server is obscene, and even if there is also other protected speech on that server that is not obscene. Seems very applicable to me.
As is clear to apparently everyone but yourself, the primary purpose of the domain seizures was the "absolute suppression of the materials themselves." It's there in the affidavit, and it's clear from Morton's speech.
Nope. The domain name is being temporarily seized subject to a hearing on the merits. It is not being destroyed.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re:
And I've learned enough to see through these seizures. If even a lowly noob like me can do it, then there's a serious problem with these seizures.
Butcher is a strong word. I didn't use it carelessly.
18 U.S.C. Chapter 46 - exactly like 15 U.S.C. 1116 - was also intended to be used for impounding articles such as phonorecords or master tapes. You can't have it both ways: either the laws against seizing counterfeits apply (in which case the seizures are unwarranted), or else they do not (in which case the seizures are unwarranted).
The section you quoted specifically says it applies only to nonjudicial seizures. These were not nonjudicial seizures. Therefore your claim that notice was mandated by the section you quoted is false. Even if notice is required, the government can always ask the court ex parte to extend the deadline that notice must be given. Perhaps that's happened here. We would have no way of knowing.
If the sites actually complied with the law under Section 512, then yes, they are protected against charges of criminal infringement as well. Indeed, how can you be guilty of criminal infringement if you can't even be guilty of civil infringement?
So, in order to be criminally liable, the sites must first lose their "safe harbor" protections. That's the entire point: ICE never determined that they lost them in the first place.
Right, if they complied with the law under section 512 they wouldn't be liable. The accusation here is of criminal infringement. This necessarily means that the section 512 safe harbors would be lost. ICE did determine that the sites lost their safe harbors. That is the necessary implication, as I've indicated.
Except that those gTLD's are only administered by companies within the U.S.'s jurisdiction. You can't move a ".com" domain overseas; they still have to go through Verisign.
If ICE intended to keep the sites themselves within the U.S.'s jurisdiction, they utterly failed - since the seizures caused those sites (and others) to deliberately set up domain names overseas.
The seizure put the domain name into the district court's control, and it removed an instrumentality of crime from the criminal's control. That was the point.
And the actual activities that these sites engaged in have never been shown to be either direct infringement, or "aiding and abetting" infringement. They've only been considered secondary infringement in tort cases. If they are convicted of direct infringement or "aiding and abetting," they will be the first in history to be so.
We'll see exactly what the government argues when that day comes.
I don't know why you keep going on about this. The intended effect was to shut down the sites entirely. That is very, very clear from the affidavit, and from the video that some A.C. posted above. Morton actually gloats that most sites did not set up shop somewhere else; and he said he was very prepared to do "a Wac-a-mole operation" if they did.
The intended effect, as explicitly laid out in the affidavit, was to seize property used to facilitate criminal infringement under 18 U.S.C. 2323. That's exactly what was done. The incidental effect on the underlying site doesn't make the seizures illegal. The servers themselves could have been seized too.
And case law is very clear: When a First Amendment can even possibly be used as a defense against that crime, then "the effect on speech" is of primary importance. It is not "incidental and irrelevant." It is prior restraint.
The caselaw is clear, but your understanding of it is not. Such property can be seized. Read Heller.
The only other relevant section is Sec. 985, Civil forfeiture of real property. (And again, this section is obviously intended for "impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such." The fact that it mentions lis pendens and restraining orders, but not injunctions, should be a clue.)
That section does not give actual time frames (e.g. "30 days,"), so I assumed the lengths in 983 also applied. . . .
Real property means real estate, or what we civilians call "immovables." That section has absolutely no bearing on any of this. You're killing me with this stuff, Karl.
So, to sum up:
Congress passed laws specifically dealing with online infringement. ICE completely ignored those laws, and instead used laws designed for seizing physical property - laws which are prior restraint if they silence protected speech. They didn't even use the default seizure rules, but used a flimsy pretext to get the "nuclear option" of ex parte seizure. Then kept the seizure orders under seal from the defendants for months on end before giving the sites any opportunity to contest them. All to combat infringement that has never been considered criminal.
These were not federal agents making a good faith attempt to stop crime. This was a deliberate and egregious attempt to route around safe harbors and the First Amendment. It was censorship, plain and simple.
Congress very recently amended 18 U.S.C. 2323 to allow for the seizure of property used to facilitate criminal infringement under 17 U.S.C. 506. The office of "IP Czar" was also created with the mandate to enforce IP laws. It's far from "censorship, plain and simple." It's law enforcement exercising their mandate.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I may not be a big-shot legal student like yourself, but I'd say that if a cop arrested someone for "conspiracy to commit emotional distress," that would be a problem.
Who says they can't show an underlying criminal act? The implication for each and every domain name that was seized is that the feds have evidence of a criminal act.
On the post: US Copyright Group Finally Files Some Other Lawsuits... In Minnesota
Re: Re: Re:
How are they supposed to know which defendants are pirates and which are innocent? The only way to do more due diligence would be to sue the defendant and commence further discovery. This alone would cost the defendant more than the price of settling. How is that better?
On the post: Francis Ford Coppola On Art, Copying And File Sharing: We Want You To Take From Us
Re: Re: Re: Re: Re: Re: Re:
On the post: Francis Ford Coppola On Art, Copying And File Sharing: We Want You To Take From Us
Re: Re:
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re:
Good deal. The more lawyers arguing the law, the better. :)
Huh? Can you explain how this evidence has been "preserved" in a manner that couldn't have been preserved without seizing the domains?
The domain name now safely resides in the control of the district court. Before it was seized, it could have been transferred to someone else by the alleged criminal. Now it can't.
Yes, well, that's a pretty big problem, isn't it? Given that the folks who operated these sites did not directly infringe on anyone's copyright, nor did were they involved in a conspiracy to infringe.
That's sort of a problem for your argument.
I agree that in the torrent-finder.com case, the site's operators probably were not direct infringers. I'm not sure you could say the same of the other seven dozen or so sites that had their domain names seized. I suspect that if torrent-finder.com fights this, the feds will be happy to change their theory of liability to one that fits the facts--accomplice liability. As far as conspiracy goes, the agent threw that out, but he never really explained it. The agent did say that he was only releasing the information he thought necessary to get the warrant, so until the rest of the investigation comes to light, we don't know what the feds have.
How? Seriously. How are they guilty of *direct* infringement?
As I indicated in the previous response, I agree that torrent-finder.com is probably not actually liable for direct infringement and the agent got that wrong. That doesn't mean that warrant is fatally flawed though. More importantly, that one case does in no way affect the legality of the seizures in general.
Why do you keep making this false claim? The affidavit itself indicated the intent was to shut down the site. Why do you always ignore this?
The statute says that any property used to commit criminal infringement can be seized. The domain name fits this definition, and that's what was seized. The effect on the site was incidental. I'm not ignoring it. I admit that the site was affected. I just don't see how that negates the authority to seize the domain name under 18 U.S.C. 2323. Besides, I think the servers themselves could also be seized.
AJ, you seem to be bending over backwards here to defend the indefensible. Can I at least ask a simple question: whether or not these seizures were legal, do you feel they were right? Think carefully.
I disagree that it's indefensible for the simple reason that it's not conclusive whether or not these seizures are unconstitutional under the 1st or 5th Amendments. You keep talking like that's a foregone conclusion, but it's not. I'm keeping an open mind. You're locked in to your position and you've got a closed mind.
To answer your question, I don't have a problem with the seizures, as long as they are legal.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re:
What conditions weren't met? I don't follow you.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re:
A judge did determine that there was sufficient probable cause in these seizures, not DHS.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re:
For example, probable cause can justify wire taping someones phone. Saying that there is probable cause to justify wiretapping someone's phone is different from saying that taking their phone, or taking action against them, is acceptable. Only if evidence from the phone taps justify action against the person under surveillance can further action be taken.
That's just not true. Probable cause can and is the basis for seizing suspected instrumentalities of crime. A car or a phone (or a person for that matter) can be seized by a warrant supported by probable cause.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re:
That does not negate the fact that there was probable cause that the domain name was property used to commit or facilitate criminal infringement. It is subject to forfeiture and seizure on that fact alone. The effect on the underlying site, and the agent's statement about this effect, are irrelevant.
On the post: Karl's Favorite Techdirt Posts Of The Week
Re: Re: Re: Re: Re: Re: Re: Re:
More than mere presence at the scene is required. [...] More is needed than simply knowledge that the crime was to be committed. [...] Mere participation is not enough proof that a defendant intentionally assisted in the ventures illegal purpose. [...] The key elements are the defendant's association with the venture, participating in it as in something he wished to bring about, and seeking to make it succeed. "Association" within the meaning of aiding and abetting means the defendant shared in the criminal intent of the principal. "Participation" means the defendant engaged in some affirmative conduct designed to aid the venture.
Absolutely zero of that could be applied to music blogs, forums, or search engines.
Who cares if aiding and abetting is more difficult to prove than contributory or vicarious infringement? It's irrelevant to the legality of the seizures. Regardless, the agent in his affidavit is only alleging direct infringement and conspiracy to infringe. He did not bring up accomplice liability.
Next >>