So the mailman is just as guilty as the person who put explosives in the package.
The law makes a distinction, just like it makes a distinction between service providers who don't break the law and users who do.
Did the mailman aid, abet, counsel, command, induce or procure the person who put the explosives in the package? If not, then they are not just as guilty as the person who did.
Also: Why do you think this is "irrelevant?" If an injunction against a domain name is not allowed in any situation, with or without a hearing, why should an ex parte seizure be allowed?
That rules that apply to seizures are distinct from the rules that apply to injunctions. Regardless, injunctions are allowed against domain names. Do you just make this stuff up?
Whatever. I never claimed to be a lawyer, but even I can read the law and see why these seizures are wrong. If that makes you laugh, then have at it.
It was Mike that said it, not you. It just makes me laugh because, IMO, you butcher the law with your strained interpretations of it. If Mike considers you to have a "firm grasp," I'm very skeptical of his so-called expert lawyer friends that he claims exist and back up his side of the argument. Funny how his expert friends don't just come on techdirt and post themselves.
That would be relevant if that question was regarding pre-seizure hearings. It was not. Let's hear more from Title 17, this time specifically about impounding infringing articles. That is dealt with in 17 U.S.C 503, which in turn references 15 U.S.C. 1116 (d)(2) through (11). That section specifically states that ex parte seizures are not allowed unless "an order other than an ex parte seizure order is not adequate." In other words, ex parte seizures can only be granted if "safe harbors" are insufficient. So, the question was why ICE can totally disregard that entire section of the law. If they're allowed to do that, why have those laws in the first place? Why did Congress create Section 512 if law enforcement can just ignore it?
Did you notice that Section 503 is titled "Impounding and disposition of infringing articles"? That section deals with impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such. Such articles or documents are not what is being seized by ICE, so that section does not apply.
Well, when the law says "A service provider shall not be liable," I tend to think of that as "escaping liability." Complying with notice-and-takedown is the most common requirement, but the others (mostly having to do with disabling infringing users' accounts) are all there in 17 U.S.C. 512. Section (j)(3) of that law even makes it clear that ex parte injunctions are not allowed: Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network. You could possibly argue that the domain names were seized for the "preservation of evidence," but that's a huge stretch. A domain name is not evidence of anything except having a domain name. A simple record of the website it pointed to would suffice as evidence (it is in fact used as evidence in the affidavit), and if not, then that evidence is actually destroyed by the seizure itself. It would be even more of a stretch to suggest that taking away a domain name has "no material adverse effect" on a website. Having a "material adverse effect" is the entire point, in fact.
The accusation here is criminal infringement. The necessary implication is the sites have lost their safe harbor under section 512 since that section does not protect criminal infringement. Injunctions under section 512(j) only apply in civil cases, not criminal cases. Regardless, the rules you cite for injunctions only apply to sites that haven't lost their safe harbor. The domain names are evidence, and by the fact of their seizure, they cannot be transferred out of the U.S.'s jurisdiction. Thus, the evidence has been preserved.
Secondary liability is the only possible thing some of these sites could be guilty of. Which would mean that vicarious or contributory infringement is "criminal infringement" in the eyes of ICE. That is a problem. ICE couldn't just seize Napster's domain, why should they be able to seize these?
The is no secondary criminal infringement. The sites can be guilty of direct infringement, of aiding or abetting infringement, or of conspiracy to infringe. The agent's affidavit argued direct infringement and conspiracy to infringe. ICE could have seized Napster's domain if there was probable cause to do so.
Authorized content and fair use are presumptively protected expression. More importantly, so is expression that is not even accused of being infringing - such as the majority of the expression on the blogs and forums.
The blogs and forums were not seized. Fair use and authorization are defenses and therefore not the presumption.
One intent of the seizures, as the affidavit clearly states, was to prevent access to the websites themselves. I don't know why you aren't willing to admit this. I mean, right in the video Morton brags about other sites "voluntarily" shutting down - clearly the intent was to chill speech.
The intent was to seize an instrumentality of crime. The effect on the speech on the server is incidental and irrelevant.
From 17 U.S.C. 506(b), Criminal Offenses: Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18 From 18 U.S.C. 2323, Forfeiture, destruction, and restitution: The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section. ...which brings us back to 18 U.S.C. Chapter 46, of which I quoted Sec. 983: General rules for civil forfeiture proceedings. I don't see how I'm creating a "strawman."
The part of section 983 you're quoting says that it specifically applies to "nonjudicial" forfeitures. These are not nonjudicial forfeitures, so it doesn't apply here.
Thus, "on a separate note." That wasn't a question about legality, but about the wisdom of such seizures. Morton brings that up as if it's some kind of victory, as if it's evidence that ICE is "winning the hearts and minds" of the public. I think he's got his head up his ass. All this is doing is making people angry at the government, and more willing to break the law.
Here's a little caselaw for you, Karl. Plaintiffs raised a First Amendment challenge to the seizure of their servers with a warrant that was issued without an adversarial pretrial hearing. The materials in this case were presumptively protected by the First Amendment, by the way. This case supports the argument that not only is the seizure of domain names permissible, the servers themselves can even be seized without violating the First Amendment. I included in brackets the footnotes where the court dismisses arguments from the Fort Wayne Books line of cases and the Pappert case (arguments that you and Mike have been making). Enjoy!
[T]he plaintiffs' only remaining claim under the First Amendment is that the defendants violated their First Amendment rights by failing to hold a prior adversary hearing to determine whether the materials seized were constitutionally-protected speech. In support of this argument, the plaintiffs cite a line of Supreme Court precedent that requires a magistrate to hold a hearing to determine whether magazines, books or films are obscene and should be removed from circulation before the magistrate issues a warrant allowing for the seizure of such materials. [See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Marcus v. Search Warrants of Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961).] The plaintiffs argue that such a hearing was required before the magistrate issued the warrant in this case.
The defendants, however, point to another line of precedent, beginning with Heller v. New York, 413 U.S. 483 (1973), to support the proposition that the seizure of obscene material for evidentiary purposes only requires a valid search warrant, issued by a neutral magistrate after a finding of probable cause. Heller involved the question of whether a judicial officer could issue a valid warrant authorizing the seizure of an obscene film as evidence in a prosecution against the exhibitor without first conducting an adversary hearing on the issue of obscenity.
***
Distinguishing the case from the line of cases cited by the plaintiffs, the Supreme Court stated in Heller that it “has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.” Heller, 413 U.S. at 488. The Supreme Court further distinguished Heller by explaining that the cases requiring a hearing all involved the seizure of large quantities of materials, such as books, for the sole purpose of their destruction or the absolute suppression of the materials themselves. In Heller, only a single copy of the film was seized for the purpose of preserving it as evidence in a criminal proceeding. The Supreme Court held that “[i]f such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible.” Id. at 492.
The standard articulated by the Supreme Court in Heller applies to the defendants' actions in this case. The purpose of the seizure was not the destruction or suppression of the Quikvue materials themselves. Instead, the materials were seized for the purpose of preserving evidence of child pornography for a possible criminal proceeding.
***
The affidavit of probable cause provided detailed descriptions of the child pornography found under Agent Deery's searches. The plaintiffs do not contest that such images of child pornography are not constitutionally protected material or that the probable cause affidavit established a fair probability that such images could be found on their servers. Nor do the defendants dispute that constitutionally protected materials also existed on the plaintiffs' servers at the time of the seizure. No further determination by the magistrate was necessary in this case, and the plaintiffs have been unable to articulate what further purpose would have been served by any such determination. [The plaintiffs argue that an opinion from a District Court the Eastern District of Pennsylvania urges a different result. See Ctr. for Democracy & Technology v. Pappert, 337 F.Supp.2d 606 (E.D.Pa.2004) ( “CDT” ). CDT, however, dealt with a Pennsylvania statute that required Internet Service Providers to block access to images of child pornography. It did not address the issue of a search and seizure of evidence of child pornography and is inapplicable here.]
The seizure in this case was constitutionally permissible under the Heller standard. As already established, the warrant was issued after a determination of probable cause by a neutral magistrate. No further determination or procedure was required.
Voicenet Communications, Inc. v. Corbett, CIV.A. 04-1318, 2010 WL 3657840 (E.D. Pa. Sept. 13, 2010).
People are responsible for their own actions not the actions of other. This "n" level liability turns everyone into agents of the police and is the start of a police state.
Under 18 U.S.C. 2, a person who "aids, abets, counsels, commands, induces or procures" another person to commit a crime is just as guilty as if they had committed the crime themselves.
If the judge or ICE know better, they should be able to quickly and simply provide satisfactory answers to these questions and concerns about the affidavit that have been raised by multiple parties. Instead, ICE has evaded the questions and provided nothing.
It's not up to the agent in an affidavit to explain away possible constitutional arguments that the defendant might raise down the road. Those arguments can be raised by the defendant later. If the seizure warrant is unconstitutional, it should be a simple matter to get the warrant quashed. I just checked the docket in the tvshack.net et al. case (those domain names were seized this past summer), and no such motions have been filed yet.
Mm, you could say the blame lies very much with the rightsholders for initiating these actions. Wouldn't happen without them.
I prefer to lay the blame on the people who intentionally break the law and violate others' rights. I don't blame those who are defending their rights.
Doubt, Uncertainty, and Fear? How is that different from Fear, Uncertainty, and Doubt, aside from changing the order?
It has the opposite effect/intent of FUD, that's why I'm calling it DUF. The idea is that instead of using false or misleading information to create unfavorable opinions (FUD), false or misleading information is being used to create favorable opinions (DUF).
No offense, but Mike's claim that you have a "firm grasp of the law and case law" made me laugh out loud.
There are very specific rules regarding injuctions for online entities, which are ennumerated in 17 U.S.C. 512(j). Those rules were specifically set up by Congress to limit the liability of exactly the kind of sites that were seized, and limit injunctions to be available only for the infringing material itself, and not the site as a whole. Why were those rules not sufficient?
The rules regarding injunctions under section 512 are irrelevant to whether or not a hearing is needed before the seizure of a domain name may take place.
Furthermore, 17 U.S.C. 512(a) through (e) removes any liability (civil or criminal) for these websites, provided they comply with certain conditions (e.g. notice-and-takedown). In some of those cases, it seems that the sites did, in fact, comply - and in at least one (dajaz1.com), the material was explicitly authorized. Why was no thorough attempt made to determine if that was the case?
Absolute nonsense. Complying with notice-and-takedown is necessary, but not sufficient, to escape liability. How thorough the investigations were or were not is pure conjecture. You simply cannot know the details of the investigation unless you were a part of it.
If these sites were guilty of infringment, it would have to be for contributory or vicarious infringement. But these types of infringements have never been found to be criminal infringement. Additionally, 17 U.S.C. 506(a)(2) specifically says that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." Why is the ICE taking criminal measures against non-criminal activity?
The implication of these domain name seizures is that the underlying sites were being used for criminal infringement, plain and simple. Bringing up secondary liability under civil infringement is misdirection. It's irrelevant. Section 506 does require more than just reproduction or distribution to prove willfulness. So what? That just means the mens rea of willfulness will have to be proved.
For the government to take potentially protected expression (e.g. fair use or authorized expression) out of circulation, as was the attempt here according to the affidavits, an adversarial hearing must be held prior to seizures or preliminary injunctions. If this is not done, it is prior restraint, and unconstitutional. Why was this issue not even addressed in the seizure affidavits?
The property being seized is a domain name. It is not potentially protected speech that can't be taken out of circulation without an adversarial hearing, it is presumptively protected speech that enjoys that exception. You're misstating the test and then saying the seizures fail the test. Classic strawman.
In general, for civil forfeiture in criminal cases, 18 U.S.C Part I, Chapter 46, Sec. 983 states that the government must send a written notice to the property owners "as soon as practicable, and in no case more than 60 days after the date of the seizure." Failure to do so means the government must return the property, and moreover that it cannot seize the same property in the future. In the case of the first eight domain names seized in June, forfeiture proceedings were not commenced until six months after the seizures; prior to that, the domain owners were not even notified of the siezures, nor given any opportunity to contest them. Forfeiture proceedings have not started against the domains seized in December, and like the first eight, they have not been given any opportunity to contest the seizures. Why have the domain name owners been denied their day in court?
Another strawman. That rule applies to "nonjudicial" forfeitures. This is a judicial forfeiture.
On a different note: In the video, Morton claimed that the seized domains were getting more traffic than the original sites were. Does it not occur to him that people are going to those sites because they are outraged at what ICE did? Isn't it possible that the seizures resulted in more public sympathy for the sites in question, and for file sharing in general?
That's possible, but it's not relevant to the legality of the seizures.
If I tell Ford "I will buy my next car from Toyota unless you improve the quality of your product", is that extortion?
I think the appropriate analogy would be: "I will steal my next car from you if you don't give me what I want."
Your example has the threatened response as being something legal. That's not what's happening here, as pointed out by Anonymous. The threat here is of illegal action.
If they want to build an actual case and take it to trial thats fine. However, anybody with half a brain can see what the money making scheme here is. These cases are simply tools to scare more people into settling regardless of their guilt or innocence.
Maybe so, but if millions of people weren't intentionally breaking the law with illegal file-sharing, these lawsuits wouldn't be possible to begin with. The blame for these lawsuits lies on the pirates, not the rights holders.
And let us not forget Evan Stone and the Copyright Defense Agency... who uses an unmodified client to capture IP addresses. Can someone please explain how a single person, pretending to be a company, can participate in the swarm and actually download the file and not face the same charges? Isn't he facilitating this horrible crime? He got his own copy of the file, and helped others complete theirs. One has to wonder if there isn't a law against making a crime worse to improve your position to extract money.
Evan Stone or his agents can participate in the swarm and not face the same charges for the simple reason that they are authorized to do so by the copyright holder. Stone and Co. downloaded the file being offered up by the defendants to make sure it was in fact their client's IP. That isn't facilitating the crime as you suggest. The defendants were already offering up the file, so it's not entrapment or anything like that. As far as Stone and Co. offering up the file for the defendants to download goes, I don't think that's an issue. The claims, as far as I know, are for the defendants offering up the file for others to download. The claim isn't that the defendants downloaded the file offered up by Stone and Co. For all we know, Stone and Co. didn't offer the file up for others to download at all. The complaints are sealed, I believe, so we can't really know either way. Not that it matters, though.
Of course I still wonder how they get all those addresses just joining an existing swarm, think how many you can get if your the origin point and change the settings to make it take a long time for multiple copies to go out. Then you might have thousands of IP addresses to bring into court. Things that make you go WTF. But of course as not a single case will make it to court, no one gets to raise these issues where it counts. Because 1 ruling of IP != 1 user ends this entire shakedown scheme. Having to have actual proof rather than smoke and mirrors really would put a crimp in these "extortion mills".
I should think it would be a simple matter to join an existing swarm for a period of several months while collecting the IP addresses of those who join the swarm. If USCG is really going to be suing defendants in 15 different jurisdictions (these two cases in Minnesota just being the beginning), then I bet we will see a few cases decided on the merits. Considering that USCG can cherry-pick the "best" defendants to sue individually out of the thousands they have to choose from, I don't predict that this will go well for the defendants. As far as the idea that one ruling that an IP doesn't equal one user will somehow end any of this, I think that's nonsense. Courts already know that. The idea is that the IP address forms part of prima facie evidence of infringement by the subscriber of that IP address. It's similar to if your car gets used in a bank robbery and the security cameras catch your license plate. The cops are going to get a warrant and come to your house to investigate. Maybe you robbed the bank, or maybe somebody stole your car and robbed the bank. That doesn't matter. The cops will be following the lead. That's all the IP addresses are in these cases--they're leads. And despite your claim to the contrary, such leads are very much actual evidence.
Which, as far as I can tell, is nothing but an extortion racket. Unless it's a class action (where the numbers are inverted in this case, so I doubt it), then they can't be lumped together.
Why haven't these folks been disbarred yet?
I don't think anyone is going to be disbarred over this anytime soon for the simple reason that they're not doing anything legally wrong. It's not extortion in the legal sense.
There is the exception in the "Far Cry" case where USCG is being sued for extortion and some other things, but that's a unique situation. Even if USCG loses that case, I can't imagine they'll be disbarred. They'll just pay some money.
You don't have to have a class action in order to lump people together. You can have joinder under Rule 20 (what we have here), a class action under Rule 23, or a consolidation under Rule 42.
Under Rule 20:
Persons . . . may be joined in one action as defendants if:
(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.
USCG has argued that (A) is met because each member of a torrent swarm is participating in the same series of transactions or occurrences that can be traced back to the same peer.
They argued that (B) is met because whether the defendants used bittorrent to download the movie is a common question of fact, and whether the defendants infringed the copyright is a common question of law.
Achte/Neunte Boll Kino Beteiligungs Gmbh & Co Kg v. Larson, 0:11-cv-00138-JRT, John R. Tunheim, presiding, filed 1/19/11
Call of the Wild Movie, LLC v. Tensley, 0:11-cv-00139-RHK, Richard H. Kyle, presiding, filed 1/19/11
Both cases are in the U.S. District Court for the District of Minnesota. This is the same courthouse as the recent Thomas-Rasset case, but it's not the same judge.
They're reading my post with the hopes that one day they can read the real thing. It's aspirational! LOL!
Seriously though, I can understand people wanting to buy knock-off handbags or jeans that look like the real thing but cost less. But who in the world would want to buy knock-off strings? Are they going to show of the packaging to their friends and say, "Look at these D'Addario's!"? LOL! That makes zero sense.
On the post: Karl's Favorite Techdirt Posts Of The Week
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The law makes a distinction, just like it makes a distinction between service providers who don't break the law and users who do.
Did the mailman aid, abet, counsel, command, induce or procure the person who put the explosives in the package? If not, then they are not just as guilty as the person who did.
On the post: Karl's Favorite Techdirt Posts Of The Week
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That rules that apply to seizures are distinct from the rules that apply to injunctions. Regardless, injunctions are allowed against domain names. Do you just make this stuff up?
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It was Mike that said it, not you. It just makes me laugh because, IMO, you butcher the law with your strained interpretations of it. If Mike considers you to have a "firm grasp," I'm very skeptical of his so-called expert lawyer friends that he claims exist and back up his side of the argument. Funny how his expert friends don't just come on techdirt and post themselves.
That would be relevant if that question was regarding pre-seizure hearings. It was not. Let's hear more from Title 17, this time specifically about impounding infringing articles. That is dealt with in 17 U.S.C 503, which in turn references 15 U.S.C. 1116 (d)(2) through (11). That section specifically states that ex parte seizures are not allowed unless "an order other than an ex parte seizure order is not adequate." In other words, ex parte seizures can only be granted if "safe harbors" are insufficient. So, the question was why ICE can totally disregard that entire section of the law. If they're allowed to do that, why have those laws in the first place? Why did Congress create Section 512 if law enforcement can just ignore it?
Did you notice that Section 503 is titled "Impounding and disposition of infringing articles"? That section deals with impounding articles such as phonorecords or master tapes, or the records documenting the manufacture or sale of such. Such articles or documents are not what is being seized by ICE, so that section does not apply.
Well, when the law says "A service provider shall not be liable," I tend to think of that as "escaping liability." Complying with notice-and-takedown is the most common requirement, but the others (mostly having to do with disabling infringing users' accounts) are all there in 17 U.S.C. 512. Section (j)(3) of that law even makes it clear that ex parte injunctions are not allowed: Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network. You could possibly argue that the domain names were seized for the "preservation of evidence," but that's a huge stretch. A domain name is not evidence of anything except having a domain name. A simple record of the website it pointed to would suffice as evidence (it is in fact used as evidence in the affidavit), and if not, then that evidence is actually destroyed by the seizure itself. It would be even more of a stretch to suggest that taking away a domain name has "no material adverse effect" on a website. Having a "material adverse effect" is the entire point, in fact.
The accusation here is criminal infringement. The necessary implication is the sites have lost their safe harbor under section 512 since that section does not protect criminal infringement. Injunctions under section 512(j) only apply in civil cases, not criminal cases. Regardless, the rules you cite for injunctions only apply to sites that haven't lost their safe harbor. The domain names are evidence, and by the fact of their seizure, they cannot be transferred out of the U.S.'s jurisdiction. Thus, the evidence has been preserved.
Secondary liability is the only possible thing some of these sites could be guilty of. Which would mean that vicarious or contributory infringement is "criminal infringement" in the eyes of ICE. That is a problem. ICE couldn't just seize Napster's domain, why should they be able to seize these?
The is no secondary criminal infringement. The sites can be guilty of direct infringement, of aiding or abetting infringement, or of conspiracy to infringe. The agent's affidavit argued direct infringement and conspiracy to infringe. ICE could have seized Napster's domain if there was probable cause to do so.
Authorized content and fair use are presumptively protected expression. More importantly, so is expression that is not even accused of being infringing - such as the majority of the expression on the blogs and forums.
The blogs and forums were not seized. Fair use and authorization are defenses and therefore not the presumption.
One intent of the seizures, as the affidavit clearly states, was to prevent access to the websites themselves. I don't know why you aren't willing to admit this. I mean, right in the video Morton brags about other sites "voluntarily" shutting down - clearly the intent was to chill speech.
The intent was to seize an instrumentality of crime. The effect on the speech on the server is incidental and irrelevant.
From 17 U.S.C. 506(b), Criminal Offenses: Forfeiture, destruction, and restitution relating to this section shall be subject to section 2323 of title 18 From 18 U.S.C. 2323, Forfeiture, destruction, and restitution: The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section. ...which brings us back to 18 U.S.C. Chapter 46, of which I quoted Sec. 983: General rules for civil forfeiture proceedings. I don't see how I'm creating a "strawman."
The part of section 983 you're quoting says that it specifically applies to "nonjudicial" forfeitures. These are not nonjudicial forfeitures, so it doesn't apply here.
Thus, "on a separate note." That wasn't a question about legality, but about the wisdom of such seizures. Morton brings that up as if it's some kind of victory, as if it's evidence that ICE is "winning the hearts and minds" of the public. I think he's got his head up his ass. All this is doing is making people angry at the government, and more willing to break the law.
Perhaps.
On the post: Karl's Favorite Techdirt Posts Of The Week
Voicenet Communications, Inc. v. Corbett, CIV.A. 04-1318, 2010 WL 3657840 (E.D. Pa. Sept. 13, 2010).
On the post: Funniest/Most Insightful Comments Of The Week
http://www.techdirt.com/articles/20110120/04272412742/jim-daddario-defends-his-support-coi ca-domain-seizures.shtml#c1413
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Under 18 U.S.C. 2, a person who "aids, abets, counsels, commands, induces or procures" another person to commit a crime is just as guilty as if they had committed the crime themselves.
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It's not up to the agent in an affidavit to explain away possible constitutional arguments that the defendant might raise down the road. Those arguments can be raised by the defendant later. If the seizure warrant is unconstitutional, it should be a simple matter to get the warrant quashed. I just checked the docket in the tvshack.net et al. case (those domain names were seized this past summer), and no such motions have been filed yet.
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I prefer to lay the blame on the people who intentionally break the law and violate others' rights. I don't blame those who are defending their rights.
On the post: Francis Ford Coppola On Art, Copying And File Sharing: We Want You To Take From Us
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On the post: Francis Ford Coppola On Art, Copying And File Sharing: We Want You To Take From Us
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It has the opposite effect/intent of FUD, that's why I'm calling it DUF. The idea is that instead of using false or misleading information to create unfavorable opinions (FUD), false or misleading information is being used to create favorable opinions (DUF).
I'm working on a good "backronym" to make it work. http://en.wikipedia.org/wiki/Backronym
On the post: Francis Ford Coppola On Art, Copying And File Sharing: We Want You To Take From Us
There seems to be two types of stories on techdirt, FUD and DUF. We all know what FUD is. DUF is just the opposite of FUD. This story is all DUF.
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There are very specific rules regarding injuctions for online entities, which are ennumerated in 17 U.S.C. 512(j). Those rules were specifically set up by Congress to limit the liability of exactly the kind of sites that were seized, and limit injunctions to be available only for the infringing material itself, and not the site as a whole. Why were those rules not sufficient?
The rules regarding injunctions under section 512 are irrelevant to whether or not a hearing is needed before the seizure of a domain name may take place.
Furthermore, 17 U.S.C. 512(a) through (e) removes any liability (civil or criminal) for these websites, provided they comply with certain conditions (e.g. notice-and-takedown). In some of those cases, it seems that the sites did, in fact, comply - and in at least one (dajaz1.com), the material was explicitly authorized. Why was no thorough attempt made to determine if that was the case?
Absolute nonsense. Complying with notice-and-takedown is necessary, but not sufficient, to escape liability. How thorough the investigations were or were not is pure conjecture. You simply cannot know the details of the investigation unless you were a part of it.
If these sites were guilty of infringment, it would have to be for contributory or vicarious infringement. But these types of infringements have never been found to be criminal infringement. Additionally, 17 U.S.C. 506(a)(2) specifically says that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." Why is the ICE taking criminal measures against non-criminal activity?
The implication of these domain name seizures is that the underlying sites were being used for criminal infringement, plain and simple. Bringing up secondary liability under civil infringement is misdirection. It's irrelevant. Section 506 does require more than just reproduction or distribution to prove willfulness. So what? That just means the mens rea of willfulness will have to be proved.
For the government to take potentially protected expression (e.g. fair use or authorized expression) out of circulation, as was the attempt here according to the affidavits, an adversarial hearing must be held prior to seizures or preliminary injunctions. If this is not done, it is prior restraint, and unconstitutional. Why was this issue not even addressed in the seizure affidavits?
The property being seized is a domain name. It is not potentially protected speech that can't be taken out of circulation without an adversarial hearing, it is presumptively protected speech that enjoys that exception. You're misstating the test and then saying the seizures fail the test. Classic strawman.
In general, for civil forfeiture in criminal cases, 18 U.S.C Part I, Chapter 46, Sec. 983 states that the government must send a written notice to the property owners "as soon as practicable, and in no case more than 60 days after the date of the seizure." Failure to do so means the government must return the property, and moreover that it cannot seize the same property in the future. In the case of the first eight domain names seized in June, forfeiture proceedings were not commenced until six months after the seizures; prior to that, the domain owners were not even notified of the siezures, nor given any opportunity to contest them. Forfeiture proceedings have not started against the domains seized in December, and like the first eight, they have not been given any opportunity to contest the seizures. Why have the domain name owners been denied their day in court?
Another strawman. That rule applies to "nonjudicial" forfeitures. This is a judicial forfeiture.
On a different note: In the video, Morton claimed that the seized domains were getting more traffic than the original sites were. Does it not occur to him that people are going to those sites because they are outraged at what ICE did? Isn't it possible that the seizures resulted in more public sympathy for the sites in question, and for file sharing in general?
That's possible, but it's not relevant to the legality of the seizures.
On the post: US Copyright Group Finally Files Some Other Lawsuits... In Minnesota
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I think the appropriate analogy would be: "I will steal my next car from you if you don't give me what I want."
Your example has the threatened response as being something legal. That's not what's happening here, as pointed out by Anonymous. The threat here is of illegal action.
On the post: US Copyright Group Finally Files Some Other Lawsuits... In Minnesota
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Maybe so, but if millions of people weren't intentionally breaking the law with illegal file-sharing, these lawsuits wouldn't be possible to begin with. The blame for these lawsuits lies on the pirates, not the rights holders.
On the post: US Copyright Group Finally Files Some Other Lawsuits... In Minnesota
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Evan Stone or his agents can participate in the swarm and not face the same charges for the simple reason that they are authorized to do so by the copyright holder. Stone and Co. downloaded the file being offered up by the defendants to make sure it was in fact their client's IP. That isn't facilitating the crime as you suggest. The defendants were already offering up the file, so it's not entrapment or anything like that. As far as Stone and Co. offering up the file for the defendants to download goes, I don't think that's an issue. The claims, as far as I know, are for the defendants offering up the file for others to download. The claim isn't that the defendants downloaded the file offered up by Stone and Co. For all we know, Stone and Co. didn't offer the file up for others to download at all. The complaints are sealed, I believe, so we can't really know either way. Not that it matters, though.
Of course I still wonder how they get all those addresses just joining an existing swarm, think how many you can get if your the origin point and change the settings to make it take a long time for multiple copies to go out. Then you might have thousands of IP addresses to bring into court. Things that make you go WTF. But of course as not a single case will make it to court, no one gets to raise these issues where it counts. Because 1 ruling of IP != 1 user ends this entire shakedown scheme. Having to have actual proof rather than smoke and mirrors really would put a crimp in these "extortion mills".
I should think it would be a simple matter to join an existing swarm for a period of several months while collecting the IP addresses of those who join the swarm. If USCG is really going to be suing defendants in 15 different jurisdictions (these two cases in Minnesota just being the beginning), then I bet we will see a few cases decided on the merits. Considering that USCG can cherry-pick the "best" defendants to sue individually out of the thousands they have to choose from, I don't predict that this will go well for the defendants. As far as the idea that one ruling that an IP doesn't equal one user will somehow end any of this, I think that's nonsense. Courts already know that. The idea is that the IP address forms part of prima facie evidence of infringement by the subscriber of that IP address. It's similar to if your car gets used in a bank robbery and the security cameras catch your license plate. The cops are going to get a warrant and come to your house to investigate. Maybe you robbed the bank, or maybe somebody stole your car and robbed the bank. That doesn't matter. The cops will be following the lead. That's all the IP addresses are in these cases--they're leads. And despite your claim to the contrary, such leads are very much actual evidence.
On the post: US Copyright Group Finally Files Some Other Lawsuits... In Minnesota
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On the post: US Copyright Group Finally Files Some Other Lawsuits... In Minnesota
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Why haven't these folks been disbarred yet?
I don't think anyone is going to be disbarred over this anytime soon for the simple reason that they're not doing anything legally wrong. It's not extortion in the legal sense.
There is the exception in the "Far Cry" case where USCG is being sued for extortion and some other things, but that's a unique situation. Even if USCG loses that case, I can't imagine they'll be disbarred. They'll just pay some money.
You don't have to have a class action in order to lump people together. You can have joinder under Rule 20 (what we have here), a class action under Rule 23, or a consolidation under Rule 42.
Under Rule 20:
USCG has argued that (A) is met because each member of a torrent swarm is participating in the same series of transactions or occurrences that can be traced back to the same peer.
They argued that (B) is met because whether the defendants used bittorrent to download the movie is a common question of fact, and whether the defendants infringed the copyright is a common question of law.
On the post: US Copyright Group Finally Files Some Other Lawsuits... In Minnesota
Achte/Neunte Boll Kino Beteiligungs Gmbh & Co Kg v. Larson, 0:11-cv-00138-JRT, John R. Tunheim, presiding, filed 1/19/11
Call of the Wild Movie, LLC v. Tensley, 0:11-cv-00139-RHK, Richard H. Kyle, presiding, filed 1/19/11
Both cases are in the U.S. District Court for the District of Minnesota. This is the same courthouse as the recent Thomas-Rasset case, but it's not the same judge.
On the post: Jim D'Addario Defends His Support Of COICA & Domain Seizures
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On the post: Jim D'Addario Defends His Support Of COICA & Domain Seizures
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Seriously though, I can understand people wanting to buy knock-off handbags or jeans that look like the real thing but cost less. But who in the world would want to buy knock-off strings? Are they going to show of the packaging to their friends and say, "Look at these D'Addario's!"? LOL! That makes zero sense.
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