You can have negligence that is criminal. A person acts negligently when he should have been aware of a substantial and unjustifiable risk that a certain result will occur because of his conduct. The idea is that even though a negligent person is unaware of the risk and therefore does not have a "criminal mind," the law will impute that awareness to him because a reasonable person would have been so aware.
Torrent-finder has examples of both direct and contributory infringement on their site. Go look Joe, and tell me you don't see that.
I read it again just yesterday. Show me where the agent says that torrent-finder is an accomplice. I didn't see it. And if they are an accomplice, who is the principal? The agent said nothing of the sort that I could see.
In other words, there's nothing indicating that criminal copyright inducement exists. Yes, the courts have said it's possible in civil cases, but there's no such support for making it a crime.
Accomplice liability is basic to criminal law,. One who "induces" a crime is "punishable as a principal" under 18 U.S.C. 2:
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
I don't think the affidavit is painting torrent-finder as an accomplice though. I think the agent is arguing that torrent-finder is the direct infringer, not the accomplice.
Criminal infringement is defined under 17 U.S.C. 506(a):
Any person who willfully infringes a copyright shall be punished . . . if the infringement was committed . . . for purposes of commercial advantage or private financial gain . . . .
The affidavit explains how the agent downloaded a movie called "The Town" using torrent-finder. He says he was able to download the torrent file for the movie "from a bit Torrent site" that was displayed in a frame "on the Torrent Finder website." He then goes on to show that "The Town" is copyrighted and the file he downloaded was verified to be pirated. The agent also shows that torrent-finder exists for commercial advantage.
And all of this evidence purports to meet the requirements of criminal infringement under 506(a). But does it, really? I'm torn at the moment.
Damn you, Masnick. ;)
I think torrent-finder is potentially guilty of criminal infringement on an accomplice theory, but that's not what the affidavit alleges.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright
Does the sign itself infringe? The analogy gets stretched there so possibly, but even so seizing the domain name but doing nothing whatsoever about the site itself is still like taking the road signs down while watching the big trucks marked "Niiike" drive on into "Wumbleton" and from the commentary the only legitimate purpose of a seizure is where evidence must be gathered.
The statute (18 U.S.C 2323) says that they can seize any "property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement. I think it's clear that the domain name of an allegedly infringing site fits that description.
To me then the appropriation of the domain name, if indeed it were infringing in some way in and of itself, should come after guilt is determined not before since it clearly has no relationship to evidence and the argument "because it's the only thing we can get to, it's in another country" doesn't hold water if the standard is that the seizure is for evidentiary purposes - again that would be an argument for the judgement after conviction not before.
I totally agree that it would be better to have the hearing first. I'm not convinced that justice requires it though. For a while I thought that the First Amendment demanded it, but after doing some more reading, I'm not really sure of that either. I don't think there is a clear answer on either side of the issue, and I won't be surprised if we get some conflicting results in different courts as these issues get tried.
Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright
That's a point that average_joe raised early on as well, but I believe it's mistaken. If you read the full affidavit, at no point does the agent make the case that the DOMAIN NAME itself is involved in the infringement.
So I don't believe you can argue it both ways: if the affidavit focuses on the content on the server, but then says "and that's why we need to seize the domain name" you can't get away with then arguing that by only seizing the domain name, it's okay, because it had nothing to do with the content on the server.
I see your point, but I think the answer is that you can't justify seizing the domain name unless the underlying site is involved in the infringement. You couldn't make a case for the domain name without looking at the site. That wouldn't make much sense. The domain name is what people use to access the site, so that's what was seized. If these sites were hosted overseas, then the domain name was all they even could seize. It is a little confusing though, since the domain name and the underlying site as so related to each other.
In fact, the affidavit itself rejects this very concept by claiming (incorrectly, but still claiming) that seizing the domain name would block access to the server. Thus the affidavit itself makes clear that DHS intended to takedown the content itself. The entire affidavit is focused on that.
I agree with you that they seized the domain name to prevent access to the server. That was the whole point, wasn't it? ;)
I think the employee's ideas could have been covered by the employment agreement, but the issue on appeal was that the district court erred in holding that the ideas necessarily were Mattel's. The issue should have been presented to the jury.
From the opinion:
We conclude that the agreement could be interpreted to cover ideas, but the text doesn’t compel that reading. The district court thus erred in holding that the agreement, by its terms, clearly covered ideas. . . . . If the meaning turns in part on the credibility of conflicting extrinsic evidence, a properly instructed jury should have decided the issue.
I should have given you the appellate court cite for the Bouchat case too. It's 506 F.3d 315 (4th Cir. 2007).
One curious result of the court's reasoning is that it would incentivize further infringement once the first act has been committed. The initial torrent seeder would want as many infringing downloads as possible, to minimize his own share of the single statutory award, as would each downloader, encouraging him to seed further. That seems like a very strange result, one that I doubt the court considered at the time.
I had thought of that too. It's certainly a quirky result if true. The more defendants that infringe the work, the less each defendant is liable. It also leads to the possibility that once there's been a lawsuit over a particular swarm, subsequent lawsuits over the same swarm might be precluded by res judicata.
Perhaps it not a bad result though. Say you had 1,000,000 people in a swarm sharing plaintiff's work. Is plaintiff really supposed to be able to recover $750,000,000 for the infringement of one of his works (at the minimum statutory damages of $750 per infringement)? That seems like a ridiculous result too.
I think the bigger issue is that the Copyright Act just isn't set up to handle the situation now possible where you can have thousands of people sharing the same file. The Act's preference for claim splitting doesn't fit well with the realities of piracy on a massive scale.
In any case, thanks for the follow-up. I'm definitely still very skeptical, but it's an interesting issue.
And thank you for the thoughtful reply. People should be skeptical whenever I'm interpreting and applying caselaw. LOL! I'm taking a seminar on advanced torts this coming semester, and I was hoping to bend my prof's ear about these damages issues. I'm always open to insight on these issues. Fun stuff!
I found one of my research trails... One case was McClatchey v. Associated Press, 2007 WL 1630261 (W.D.Pa. 2007), and another was Bouchat v. Champion Products, Inc., 327 F.Supp.2d 537 (D.Md. 2003). Both cases refer to a hypothetical in 4 Nimmer on Copyright § 14.04(E)(2)(d), but only to reject it.
From McClatchey:
The Court does not agree with McClatchey's strained, albeit creative, proposed interpretation of the statute. The statute simply does not require full and complete joint and several liability amongst all alleged infringers. As McClatchey acknowledges, there is partial joint and several liability in this case because each downstream user (AOL, The Progress, Newsday) is jointly and severally liable with AP. Thus, none of the downstream users can be an "individually liable infringer" for the purpose of triggering a distinct statutory damages award. Instead, this is a case in which "any two or more infringers are liable jointly and severally." McClatchey's proposed interpretation would render the word "any" superfluous, or alternatively, would rewrite the statute to impose a single award only where "all infringers are liable jointly and severally." In sum, the Court concludes that the most plausible interpretation of the statute authorizes a single award when there is any joint and several liability, even if there is not complete joint and several liability amongst all potential infringers.
The factual situation faced by the Court in Bouchat v. Champion Products, Inc., 327 F.Supp.2d 537 (D.Md.2003) (involving the logo for the Baltimore Ravens football team) is quite analogous. Although the discussion in Bouchat is dicta and, in any event, not binding on this Court, the Court finds it to be persuasive. In Bouchat, one primary infringer, the NFLP, used Plaintiff's drawing to create an infringing logo. The NFLP then licensed the team logo to hundreds, if not thousands, of business entities that used the logo in the course of their businesses. Bouchat flatly rejected the hypothetical in Nimmer on Copyright, at least in the context of coordinated mass marketing operations, characterizing the result as "absurd." Id. at 553. The Court explained that each of the downstream defendants acted derivatively from a common primary infringer and was jointly and severally liable with the NFLP. Id. at n. 22. Accordingly, the Court concluded that Plaintiff would be limited to a single statutory damages award.
Nimmer's hypo as summarized in the case:
[I]f D (a movie distributor), sent the infringing work to A, B and C (three unrelated theaters who were not jointly and severally liable with each other), there should be three sets of statutory damages awards.
I appreciate the comments, David. I'm here to learn, and I welcome the criticism. Thanks!
Downloading torrents differs, in that there's going to be overlap between varying sets of multiple infringers. But even with overlap, I wouldn't expect a chain of seeders/peers/leechers to all be considered jointly and severally liable for any particular infringement(s) involved. And based on what the result should be in the example without any overlap, I think defendants would have to point to at least one infringement jointly and severally shared by everyone in order to argue that all defendants split just one statutory damages amount.
You're probably right. I came to my conclusion after reading Nimmer, Patry, and some caselaw. I didn't take any notes on what I read, so unfortunately I can't cite to any of it. In the USCG cases, as I recall, they argued that every single defendant potentially supplied every single other defendant with a portion of the same file. In a couple cases, USCG was ordered to show cause why the defendants shouldn't be severed for misjoinder. I thought the memo they supplied the court was a manifesto of how the defendants were all acting in concert. Acting in concert means joint tortfeasors, and joint tortfeasors means joint and several liability. That was my take anyway. I never found any caselaw involving members of a torrent swarm being held jointly and severally liable for the same infringement, so I was going out on a limb by suggesting it.
By the way, in your earlier comment, you mentioned an example of a chain of friends making copies of copies being a settled issue---I haven't seen that line of cases before, but if you have examples on hand I'd love to take a look.
Woops. Rereading what I posted, I see that I misspoke. What I should have said is: If I take a DVD and make copies for two friends, then I am liable jointly and severally with each of those two friends. They are not, however, jointly and severally liable to each other. USCG was arguing that each person in the swarm is sharing parts of the file with everyone else. If that's true, then each person would be jointly and severally liable with everyone else. Again, this is my take, and it's certainly likely that I'm wrong.
I don't think the judge has the luxury of denying joinder if it's been sufficiently pleaded. The judge's personal feelings are irrelevant, in theory anyway.
And I don't think it's necessarily extortion. Assuming you have a defendant that downloaded the plaintiff's work and violated the plaintiff's rights, a federal lawsuit is pretty much that plaintiff's only legal recourse.
This is why I wish we could read the complaint (I think it's sealed). Why does the judge pretend like he has to guess what the plaintiffs' arguments are for joinder? Is it really not clear that the defendants are accused of sharing the same file?
Well, okay, then, but you may go broke trying. Of course, as one of our commenters astutely pointed out, under the Copyright Act, filing against all of these defendants in a single lawsuit is actually a really bad idea for those suing, since the Copyright Act says that statutory damages are per work and not per infringement. Thus, if you have 7,000 defendants accused of sharing a single file in a single lawsuit, it likely would mean a single statutory damages award, split between them all.
I should clarify that issue a bit (my understanding of it, anyway). You can have 7,000 defendants accused of sharing the same file in a single lawsuit and have one award for damages split between them. Or you can have 7,000 separate awards for damages. It depends on the facts.
In the US Copyright Group cases, they took the arguments for joinder too far. In order to justify joining so many defendants together, they went into great detail about how each defendant was working in concert with all of the other defendants. They said that each defendant was both a seed and a peer. In doing so, USCG set up the perfect situation for the defendants to argue that damages for only one infringement should be split between them.
Apparently, in these porn cases the plaintiffs' attorneys aren't arguing that the defendants were acting in concert. Nor are they arguing enough interrelatedness between the defendants to justify joinder. I say apparently because the complaints that I've looked up have been sealed so I can't read them. I have to go by what the judge says, which isn't much.
I think the takeaway is that the plaintiffs' attorneys need to argue enough connection between the defendants to justify joinder, but not so much connectedness as to justify the defendants splitting only one award for damages. I think USCG took it too far and the porn guys didn't take it far enough. I'm sure both are learning from their mistakes, and we'll see "better" complaints in the future from each.
Happy New Year to you and yours! I truly mean it. A little optimism sounds great to me. We should all be happy for the wonderful things we have. :)
Even though I give you a lot of flack because I think you're hopeless hippie, I really do love your site. More often than not, the stories you post are the very subjects I'm interesting in. I don't think I've gone more than three days in a row without reading your blog in the past 8 months. Obviously we're don't see eye-to-eye on most issues, but I truly appreciate the way you make me think about what I do think and believe about things.
Thanks for doing such a great job in maintaining this site, and again, Happy New Year!
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You can have negligence that is criminal. A person acts negligently when he should have been aware of a substantial and unjustifiable risk that a certain result will occur because of his conduct. The idea is that even though a negligent person is unaware of the risk and therefore does not have a "criminal mind," the law will impute that awareness to him because a reasonable person would have been so aware.
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This site is totally unusable with Internet Explorer on my Windows 7 machine. Using Firefox with Ad Block works great though, so that's what I use.
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Crimes are about both intent and action. Intent is the "mens rea," and action is the "actus reus." You need both to be a crime.
http://en.wikipedia.org/wiki/Mens_rea
http://en.wikipedia.org/wiki/Actus_reus
On the post: Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?
Re: Re: Interesting...
I read it again just yesterday. Show me where the agent says that torrent-finder is an accomplice. I didn't see it. And if they are an accomplice, who is the principal? The agent said nothing of the sort that I could see.
On the post: Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?
Re: Re: Re: Interesting...
On the post: Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?
Interesting...
Accomplice liability is basic to criminal law,. One who "induces" a crime is "punishable as a principal" under 18 U.S.C. 2:
I don't think the affidavit is painting torrent-finder as an accomplice though. I think the agent is arguing that torrent-finder is the direct infringer, not the accomplice.
Criminal infringement is defined under 17 U.S.C. 506(a):
The affidavit explains how the agent downloaded a movie called "The Town" using torrent-finder. He says he was able to download the torrent file for the movie "from a bit Torrent site" that was displayed in a frame "on the Torrent Finder website." He then goes on to show that "The Town" is copyrighted and the file he downloaded was verified to be pirated. The agent also shows that torrent-finder exists for commercial advantage.
And all of this evidence purports to meet the requirements of criminal infringement under 506(a). But does it, really? I'm torn at the moment.
Damn you, Masnick. ;)
I think torrent-finder is potentially guilty of criminal infringement on an accomplice theory, but that's not what the affidavit alleges.
On the post: Yes, The Legal & Technical Errors In Homeland Security's Domain Seizure Affidavit Do Matter
Re: Re: Re: Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright
The statute (18 U.S.C 2323) says that they can seize any "property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement. I think it's clear that the domain name of an allegedly infringing site fits that description.
To me then the appropriation of the domain name, if indeed it were infringing in some way in and of itself, should come after guilt is determined not before since it clearly has no relationship to evidence and the argument "because it's the only thing we can get to, it's in another country" doesn't hold water if the standard is that the seizure is for evidentiary purposes - again that would be an argument for the judgement after conviction not before.
I totally agree that it would be better to have the hearing first. I'm not convinced that justice requires it though. For a while I thought that the First Amendment demanded it, but after doing some more reading, I'm not really sure of that either. I don't think there is a clear answer on either side of the issue, and I won't be surprised if we get some conflicting results in different courts as these issues get tried.
On the post: Yes, The Legal & Technical Errors In Homeland Security's Domain Seizure Affidavit Do Matter
Re: Re: Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright
On the post: Yes, The Legal & Technical Errors In Homeland Security's Domain Seizure Affidavit Do Matter
Re: Re: Re: Re: Re: Jurisprudence varies regarding seizures based on defamation/obscenity v. copyright
So I don't believe you can argue it both ways: if the affidavit focuses on the content on the server, but then says "and that's why we need to seize the domain name" you can't get away with then arguing that by only seizing the domain name, it's okay, because it had nothing to do with the content on the server.
I see your point, but I think the answer is that you can't justify seizing the domain name unless the underlying site is involved in the infringement. You couldn't make a case for the domain name without looking at the site. That wouldn't make much sense. The domain name is what people use to access the site, so that's what was seized. If these sites were hosted overseas, then the domain name was all they even could seize. It is a little confusing though, since the domain name and the underlying site as so related to each other.
In fact, the affidavit itself rejects this very concept by claiming (incorrectly, but still claiming) that seizing the domain name would block access to the server. Thus the affidavit itself makes clear that DHS intended to takedown the content itself. The entire affidavit is focused on that.
I agree with you that they seized the domain name to prevent access to the server. That was the whole point, wasn't it? ;)
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From the opinion:
On the post: More Mass Porn Copyright Infringement Lawsuits Get Dumped
Re: Re: Re: Re:
One curious result of the court's reasoning is that it would incentivize further infringement once the first act has been committed. The initial torrent seeder would want as many infringing downloads as possible, to minimize his own share of the single statutory award, as would each downloader, encouraging him to seed further. That seems like a very strange result, one that I doubt the court considered at the time.
I had thought of that too. It's certainly a quirky result if true. The more defendants that infringe the work, the less each defendant is liable. It also leads to the possibility that once there's been a lawsuit over a particular swarm, subsequent lawsuits over the same swarm might be precluded by res judicata.
Perhaps it not a bad result though. Say you had 1,000,000 people in a swarm sharing plaintiff's work. Is plaintiff really supposed to be able to recover $750,000,000 for the infringement of one of his works (at the minimum statutory damages of $750 per infringement)? That seems like a ridiculous result too.
I think the bigger issue is that the Copyright Act just isn't set up to handle the situation now possible where you can have thousands of people sharing the same file. The Act's preference for claim splitting doesn't fit well with the realities of piracy on a massive scale.
In any case, thanks for the follow-up. I'm definitely still very skeptical, but it's an interesting issue.
And thank you for the thoughtful reply. People should be skeptical whenever I'm interpreting and applying caselaw. LOL! I'm taking a seminar on advanced torts this coming semester, and I was hoping to bend my prof's ear about these damages issues. I'm always open to insight on these issues. Fun stuff!
On the post: More Mass Porn Copyright Infringement Lawsuits Get Dumped
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From McClatchey:
Nimmer's hypo as summarized in the case:
On the post: More Mass Porn Copyright Infringement Lawsuits Get Dumped
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Downloading torrents differs, in that there's going to be overlap between varying sets of multiple infringers. But even with overlap, I wouldn't expect a chain of seeders/peers/leechers to all be considered jointly and severally liable for any particular infringement(s) involved. And based on what the result should be in the example without any overlap, I think defendants would have to point to at least one infringement jointly and severally shared by everyone in order to argue that all defendants split just one statutory damages amount.
You're probably right. I came to my conclusion after reading Nimmer, Patry, and some caselaw. I didn't take any notes on what I read, so unfortunately I can't cite to any of it. In the USCG cases, as I recall, they argued that every single defendant potentially supplied every single other defendant with a portion of the same file. In a couple cases, USCG was ordered to show cause why the defendants shouldn't be severed for misjoinder. I thought the memo they supplied the court was a manifesto of how the defendants were all acting in concert. Acting in concert means joint tortfeasors, and joint tortfeasors means joint and several liability. That was my take anyway. I never found any caselaw involving members of a torrent swarm being held jointly and severally liable for the same infringement, so I was going out on a limb by suggesting it.
By the way, in your earlier comment, you mentioned an example of a chain of friends making copies of copies being a settled issue---I haven't seen that line of cases before, but if you have examples on hand I'd love to take a look.
Woops. Rereading what I posted, I see that I misspoke. What I should have said is: If I take a DVD and make copies for two friends, then I am liable jointly and severally with each of those two friends. They are not, however, jointly and severally liable to each other. USCG was arguing that each person in the swarm is sharing parts of the file with everyone else. If that's true, then each person would be jointly and severally liable with everyone else. Again, this is my take, and it's certainly likely that I'm wrong.
On the post: More Mass Porn Copyright Infringement Lawsuits Get Dumped
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And I don't think it's necessarily extortion. Assuming you have a defendant that downloaded the plaintiff's work and violated the plaintiff's rights, a federal lawsuit is pretty much that plaintiff's only legal recourse.
On the post: More Mass Porn Copyright Infringement Lawsuits Get Dumped
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On the post: More Mass Porn Copyright Infringement Lawsuits Get Dumped
I should clarify that issue a bit (my understanding of it, anyway). You can have 7,000 defendants accused of sharing the same file in a single lawsuit and have one award for damages split between them. Or you can have 7,000 separate awards for damages. It depends on the facts.
In the US Copyright Group cases, they took the arguments for joinder too far. In order to justify joining so many defendants together, they went into great detail about how each defendant was working in concert with all of the other defendants. They said that each defendant was both a seed and a peer. In doing so, USCG set up the perfect situation for the defendants to argue that damages for only one infringement should be split between them.
Apparently, in these porn cases the plaintiffs' attorneys aren't arguing that the defendants were acting in concert. Nor are they arguing enough interrelatedness between the defendants to justify joinder. I say apparently because the complaints that I've looked up have been sealed so I can't read them. I have to go by what the judge says, which isn't much.
I think the takeaway is that the plaintiffs' attorneys need to argue enough connection between the defendants to justify joinder, but not so much connectedness as to justify the defendants splitting only one award for damages. I think USCG took it too far and the porn guys didn't take it far enough. I'm sure both are learning from their mistakes, and we'll see "better" complaints in the future from each.
On the post: New Year's Message: From Pessimism To Optimism... And The Power Of Innovation
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On the post: New Year's Message: From Pessimism To Optimism... And The Power Of Innovation
Happy New Year to you and yours! I truly mean it. A little optimism sounds great to me. We should all be happy for the wonderful things we have. :)
Even though I give you a lot of flack because I think you're hopeless hippie, I really do love your site. More often than not, the stories you post are the very subjects I'm interesting in. I don't think I've gone more than three days in a row without reading your blog in the past 8 months. Obviously we're don't see eye-to-eye on most issues, but I truly appreciate the way you make me think about what I do think and believe about things.
Thanks for doing such a great job in maintaining this site, and again, Happy New Year!
AJ
On the post: New Year's Message: From Pessimism To Optimism... And The Power Of Innovation
Re: Re: Not optimistic, not pessimistic...
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