AJ, torrent files have many legitimate uses as has been pointed out to you many, many times - Linux distros, CC media, WoW updates, etc. So why do you keep ignoring this?
As the Ninth Circuit pointed out in Napster, that fact doesn't matter once there is actual or apparent knowledge of infringement.
What specific content should he remove from his site. Since it's so obvious, please let us know.
I answered this above, but I'll answer it here as well. He should have removed the very content that he admitted he himself downloaded and that he knew to be infringing. On top of that, e should have removed the very files that he would have discovered to be infringing had he fulfilled his LEGAL DUTY to discover and remove.
You simply do not seem to grasp that when someone is willfully blind, the LAW IMPUTES THAT KNOWLEDGE TO THEM.
Fung ran more than a simple, innocent search engine. Innocent search engines don't have trackers and they don't host torrent files of which 95% are infringing. They don't have message boards where the founder and his appointed admins and mods encourage and help people to search for, locate, download, upload, and watch specific files known to be infringing. They don't have categories on their home page like "box office movies" and metatags like "warez."
I find it simply beyond reason that you gloss over these facts and pretend like Fung isn't one of the pirate kings. It truly fascinates me that you can do this.
In the meantime, can you explain which files he needed to remove from his server, since it's obvious to you which are infringing?
Sure, Mike, I'll tell you exactly which files he should have removed. He can start by removing the very files he admitted that he used to download infringing materials. He cannot possibly deny that he knew those SPECIFIC FILES were there since he admitted that he used them himself. You have yet to explain away this specific fact. This fact was unrebutted by Fung.
To further answer your question, he should have also removed the files that he should have known were there--that he would have known were there--if he had only looked, as was his duty to do. You seem to be ignoring the FACT that he can't turn a blind eye to the piracy and then pretend like he doesn't see it. "Willful blindness is knowledge, in copyright law."
Pretend all you want that he is innocent and didn't know about it, but the facts show that he not only knew about it, he participated in it. He used his own service to infringe, and in his message boards he encouraged and helped people to search for, locate, download, upload, and watch specific infringing content.
Seriously, Mike, answer me this. Fung admitted that he used his website to download infringing content. How can he later say that he was unaware that there was infringing content on his site? Do you really think he can pretend like he didn't know about SPECIFIC material being infringing when he admitted that he downloaded SPECIFIC material that he knew to be infringing?
Please explain how you think this is anything but clear. Please respond to this exact fact.
Are you really so desperate to paint this pirate as a victim that you can't see his guilt?
First of all, as has been noted many times, copyright holders often put their own material online. How is Fung to know which is and which is not infringing in the absence of specific notice?
The simple fact is that Fung was aware of sufficient facts and circumstances that it became his duty to take action. He cannot avail himself of his willful blindness. I don't buy it and the court didn't either.
Second, the infringing material did not reside on his site, so I'm surprised that you claim he did not remove the material. IsoHunt is a search engine. It may find lots of infringing material, but that material is on other sites. It seems odd that you would hold a search engine liable for what it found, and claim it should be "removed.
But he collected, received, indexed, and made available the dot-torrent files that serve only one purpose, which is to download the material they point to. The court saw right through this charade too.
Judges aren't as dumb as you seem to think. How you can defend someone like Fung who bragged publicly about his facilitation of piracy is beyond me.
Simple. Plaintiffs showed that Fung had reason to know of infringing activities and that he then did nothing to remove the infringing material once the infringing activity was apparent. These facts were unrebutted by Fung.
Except for maybe the undisputed fact that Fung posted several messages in his forums instructing users on how to search for, download, and watch specific infringing works.
First of all, do you have a registered DMCA agent? If not, you should fill out the paperwork with the Copyright Office ASAP. This can save you from being sued by Righthaven in the first place for the actions of your users. If you have a registered agent, Righthaven has to request you remove the infringing content before they can sue you.
Your TOS, if they're enforceable, do not affect third-parties like Righthaven since they never agreed to your TOS. If Righthaven is suing you for your poster's actions, the theory is either contributory infringement (knowledge plus material contribution on your part) or vicarious infringement (financial benefit plus right to supervise on your part). In either case, you are potentially liable for the actions of your users, and the fact that your users are bound by the TOS is irrelevant to whether or not Righthaven is.
The issue of whether or not Righthaven can sue an out-of-state defendant in Nevada would be governed by Nevada's long arm statute. Typically jurisdictional analysis requires a finding of purposeful availment and minimum contacts. The idea is that by you or your users taking actions that have an effect in Nevada, you are opening yourself up to liability in that state.
The original ruling on IsoHunt broke some new ground in actually being one of the first (and perhaps most high profile case) to use the whole "Red Flag" claim to make IsoHunt guilty of contributory infringement.
Fung admitted that he used his own website to download infringing materials. The court noted: "Fung's actions show that Fung was aware that infringing material was available on the Defendant websites." Now is that not knowledge?
And what about the fact that his website listed available downloads in categories with names like "box office movies" that were filled wsith infringing materials? Doesn't that seem like knowledge to you?
The court thought the knowledge was so obvious that it didn't even raise a triable issue of fact. How exactly do you reach the opposite conclusion?
And you do understand that it's not just what you know, but it's what you should know, right? To quote Judge Posner in Aimster, "Willful blindness is knowledge, in copyright law."
I've read quite a bit of trademark caselaw over domain names in the context of cybersquatting or dilution, and the argument there is over whether or not the sites are commercial. If the sites are not commercial, the plaintiff can't meet their burden.
What's happening here is slightly different since the domain name gets the safe harbor if it's either commercial speech or core speech. Exactly which kind of speech it is might matter at the trial, but for the threshold inquiry of the seizure warrant, it only matters if it's one or the other.
AJ- interesting take, but how is Title 18, sec 2323 not applicable?
18 U.S.C 2323 is still good law in general. The problem is in its application to domain names. Any seizure that is made pursuant to the statute must conform to Fourth Amendment doctrine, and the current doctrine says that protected speech can't be seized without a trial. The countervailing risk of prior restraint won't allow it. The key to the whole thing is the issue of whether or not a domain name is protected speech. The caselaw suggests that while such a determination must be made on a case-by-case basis, in general, domain names are protected speech. That's my takeaway anyhow.
Admittedly, the precise contours of the commercial speech doctrine are in well-known disarray.
That's the sense I got reading the caselaw. There's no one test for determining whether a domain name is commercial speech or not. For the purposes of the seizure hearings, though, it doesn't matter if the domain names are commercial speech or core speech. The First Amendment prevents their seizure either way. The court wouldn't necessary have to make a determination between commercial and non-commercial speech. The presumption is that a domain name is not protected speech. The court only needs to determine that it's either commercial speech or core speech since either one alone is sufficient to qualify for the exception. I don't think that it's really that tricky of a determination to make since it's hard to imagine a domain name that isn't either commercial speech or core speech.
If the domain names are in fact entitled to safe harbor from the seizure statute (18 U.S.C. 2323), the only problem seems to be that the judges simply don't know about it. I doubt the agents applying for the warrants know about it either. There isn't any caselaw directly on point so you have to connect the dots to reach the conclusion. I suppose we're about to get some new caselaw that's directly on point, and that will be a good thing. If a couple of courts quash these seizure warrants on constitutional grounds, I predict the feds will stop applying for them at all. That won't slow down their anti-piracy efforts though.
Of course, one response to this, that we saw in the comments, was a claim that since ICE only seized the "domain name," speech wasn't prevented, since the speech could still live on on the server itself. This explanation fails for two reasons. First, domain names themselves can be considered speech as has been highlighted in a few different cases.
That was me that said that. I've done some legal research on the issue, and I was wrong. Domain names, as used here, are commercial speech. One aspect that you've been neglecting is that the domain names are commercial speech, not core speech. The First Amendment protection of commercial speech is limited, but there is still some protection.
The domain names in these seizures are commercial speech, not core speech. They are commercial speech because they are being used as addresses for users to locate the website owners' goods and services, i.e., their websites. Commercial speech receives much less First Amendment protection than core speech. The Supreme Court has held that when commercial speech is used for unlawful purposes, it receives no First Amendment protection.
That said, I now agree with you that these seizures are unconstitutional prior restraints violative of the First Amendment.
Whether or not the commercial speech at issue is unlawful has not been determined yet. The presumption is that it is not unlawful. Commercial speech is speech "presumptively protected by the First Amendment," and an exception to the general Fourth Amendment seizure rule prohibits its seizure prior to determination of lawfulness. The commercial speech at issue here, the domain names, can moor in the safe harbor of the Court's exception to the general seizure rule. Seizing it before a determination of its unlawfulness is prior restraint.
I realize that it may surprise some people that I now think this since I'm generally seen as being pro-IP. The reality is, I respect the rule of law first and foremost. If one side is abusing the law, I'll call them out for it no matter which side it is. I am all for rights holders exercising their rights--they just have to do so without violating the other side's rights.
I've been thinking more about the domain name as speech issue, and I've been reading relevant caselaw. It appears that my instincts were wrong and domain names can be protectable speech. However, domain names are commercial speech, not core speech, and commercial speech is not necessarily protected by the First Amendment. Domain names are commercial speech because they facilitate the public's access to websites, and they serve as the primary identifier of the source of information, products, or services.
In Central Hudson, the Supreme Court held that for commercial speech to come within First Amendment protection, "it at least must concern lawful activity and not be misleading." In other words, if the commercial speech is being used for unlawful purposes, there is no First Amendment protection. The domain names in these seizures are commercial speech, and they are not protected by the First Amendment because they being used for unlawful activity.
Even your ideological soulmate Average_Joe was forced to admit that he was wrong, and that seizures of this nature are not allowed when First Amendment issues are in play.
That's not exactly accurate. Domain names only fall into the First Amendment exception to the Fourth Amendment if they are "materials presumptively protected by the First Amendment." Do you have any proof that domain names are "presumptively protected"?
The bank robbers in your hypo would not be conspirators because you're missing all three elements of the crime. There is no actus reus since the requisite agreement and mutual understanding is missing. There is no mens rea since there is no intent to enter into an agreement with the other robbers to commit a robbery. The is no overt act since none of the alleged conspirators has taken a step that has a tendency to further the objective of the conspiracy. If you were missing any one element it wouldn't be a conspiracy. You're missing all three.
Comparing copyright infringement to criminal conspiracy liability is problematic. One sounds in tort and the other in criminal law. Let's stick to tort principles if we're talking about copyright infringement. The biggest problem with your analogies is that copyright infringement is a strict liability tort. This means intent is irrelevant. Conspiracy, on the other hand, requires an intent element to be proved beyond a reasonable doubt.
Interesting. So, what you're saying is that they are all part of the same infringement? Sounds like... They should share the fine for that singular infringement... So on a peerlist of 50K, the $5K fine works out to a dime? Sounds good to me. I'm in.\
That's exactly right. If they're going to argue that the defendants should be joined together like that into one lawsuit, then that means they are all liable for ONE infringement. They would split the liability between them. If there's 5,000 defendants and the liability is the maximum $150,000, then each defendant is on the hook for $30.
From the Copyright Act: "the copyright owner may elect . . . an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally." 17 U.S.C. 504.
It's the number of works infringed that matters, not the number of infringements of that work and not the number of infringers. I'm really surprised that this is getting more attention since it's pretty detrimental to the mass infringement suit business model.
If defendants knew that they are only potentially on the hook for their share of one infringement they probably wouldn't be inclined to settle. In one sense, the more defendants joined together, the better.
These mass infringement lawsuits can't have it both ways. They can't argue that the defendants acted in concert for the purpose of joining them together into the same lawsuit, and then later pretend like the defendants didn't act in concert when it comes time to look at damages.
They're trying to have their cake and eat it. Spread the word. :)
On the post: isoHunt Appeals Process Begins
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As the Ninth Circuit pointed out in Napster, that fact doesn't matter once there is actual or apparent knowledge of infringement.
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I answered this above, but I'll answer it here as well. He should have removed the very content that he admitted he himself downloaded and that he knew to be infringing. On top of that, e should have removed the very files that he would have discovered to be infringing had he fulfilled his LEGAL DUTY to discover and remove.
You simply do not seem to grasp that when someone is willfully blind, the LAW IMPUTES THAT KNOWLEDGE TO THEM.
Fung ran more than a simple, innocent search engine. Innocent search engines don't have trackers and they don't host torrent files of which 95% are infringing. They don't have message boards where the founder and his appointed admins and mods encourage and help people to search for, locate, download, upload, and watch specific files known to be infringing. They don't have categories on their home page like "box office movies" and metatags like "warez."
I find it simply beyond reason that you gloss over these facts and pretend like Fung isn't one of the pirate kings. It truly fascinates me that you can do this.
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Sure, Mike, I'll tell you exactly which files he should have removed. He can start by removing the very files he admitted that he used to download infringing materials. He cannot possibly deny that he knew those SPECIFIC FILES were there since he admitted that he used them himself. You have yet to explain away this specific fact. This fact was unrebutted by Fung.
To further answer your question, he should have also removed the files that he should have known were there--that he would have known were there--if he had only looked, as was his duty to do. You seem to be ignoring the FACT that he can't turn a blind eye to the piracy and then pretend like he doesn't see it. "Willful blindness is knowledge, in copyright law."
Pretend all you want that he is innocent and didn't know about it, but the facts show that he not only knew about it, he participated in it. He used his own service to infringe, and in his message boards he encouraged and helped people to search for, locate, download, upload, and watch specific infringing content.
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That's exactly right. Judges just aren't as dumb as some people seem to think. They see the big picture.
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Please explain how you think this is anything but clear. Please respond to this exact fact.
Are you really so desperate to paint this pirate as a victim that you can't see his guilt?
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The simple fact is that Fung was aware of sufficient facts and circumstances that it became his duty to take action. He cannot avail himself of his willful blindness. I don't buy it and the court didn't either.
Second, the infringing material did not reside on his site, so I'm surprised that you claim he did not remove the material. IsoHunt is a search engine. It may find lots of infringing material, but that material is on other sites. It seems odd that you would hold a search engine liable for what it found, and claim it should be "removed.
But he collected, received, indexed, and made available the dot-torrent files that serve only one purpose, which is to download the material they point to. The court saw right through this charade too.
Judges aren't as dumb as you seem to think. How you can defend someone like Fung who bragged publicly about his facilitation of piracy is beyond me.
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On the post: New Newspaper Business Model: Create Compelling Graphic, Wait For Others To Use It... And Then Sue
Re: TOS and UA vesus copyright
Your TOS, if they're enforceable, do not affect third-parties like Righthaven since they never agreed to your TOS. If Righthaven is suing you for your poster's actions, the theory is either contributory infringement (knowledge plus material contribution on your part) or vicarious infringement (financial benefit plus right to supervise on your part). In either case, you are potentially liable for the actions of your users, and the fact that your users are bound by the TOS is irrelevant to whether or not Righthaven is.
The issue of whether or not Righthaven can sue an out-of-state defendant in Nevada would be governed by Nevada's long arm statute. Typically jurisdictional analysis requires a finding of purposeful availment and minimum contacts. The idea is that by you or your users taking actions that have an effect in Nevada, you are opening yourself up to liability in that state.
Hope this helps.
On the post: isoHunt Appeals Process Begins
Fung admitted that he used his own website to download infringing materials. The court noted: "Fung's actions show that Fung was aware that infringing material was available on the Defendant websites." Now is that not knowledge?
And what about the fact that his website listed available downloads in categories with names like "box office movies" that were filled wsith infringing materials? Doesn't that seem like knowledge to you?
The court thought the knowledge was so obvious that it didn't even raise a triable issue of fact. How exactly do you reach the opposite conclusion?
And you do understand that it's not just what you know, but it's what you should know, right? To quote Judge Posner in Aimster, "Willful blindness is knowledge, in copyright law."
On the post: Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
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What's happening here is slightly different since the domain name gets the safe harbor if it's either commercial speech or core speech. Exactly which kind of speech it is might matter at the trial, but for the threshold inquiry of the seizure warrant, it only matters if it's one or the other.
On the post: Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
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18 U.S.C 2323 is still good law in general. The problem is in its application to domain names. Any seizure that is made pursuant to the statute must conform to Fourth Amendment doctrine, and the current doctrine says that protected speech can't be seized without a trial. The countervailing risk of prior restraint won't allow it. The key to the whole thing is the issue of whether or not a domain name is protected speech. The caselaw suggests that while such a determination must be made on a case-by-case basis, in general, domain names are protected speech. That's my takeaway anyhow.
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Hey, when you're right, you're right. I'm happy to see it.
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That's the sense I got reading the caselaw. There's no one test for determining whether a domain name is commercial speech or not. For the purposes of the seizure hearings, though, it doesn't matter if the domain names are commercial speech or core speech. The First Amendment prevents their seizure either way. The court wouldn't necessary have to make a determination between commercial and non-commercial speech. The presumption is that a domain name is not protected speech. The court only needs to determine that it's either commercial speech or core speech since either one alone is sufficient to qualify for the exception. I don't think that it's really that tricky of a determination to make since it's hard to imagine a domain name that isn't either commercial speech or core speech.
If the domain names are in fact entitled to safe harbor from the seizure statute (18 U.S.C. 2323), the only problem seems to be that the judges simply don't know about it. I doubt the agents applying for the warrants know about it either. There isn't any caselaw directly on point so you have to connect the dots to reach the conclusion. I suppose we're about to get some new caselaw that's directly on point, and that will be a good thing. If a couple of courts quash these seizure warrants on constitutional grounds, I predict the feds will stop applying for them at all. That won't slow down their anti-piracy efforts though.
On the post: Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
That was me that said that. I've done some legal research on the issue, and I was wrong. Domain names, as used here, are commercial speech. One aspect that you've been neglecting is that the domain names are commercial speech, not core speech. The First Amendment protection of commercial speech is limited, but there is still some protection.
The domain names in these seizures are commercial speech, not core speech. They are commercial speech because they are being used as addresses for users to locate the website owners' goods and services, i.e., their websites. Commercial speech receives much less First Amendment protection than core speech. The Supreme Court has held that when commercial speech is used for unlawful purposes, it receives no First Amendment protection.
That said, I now agree with you that these seizures are unconstitutional prior restraints violative of the First Amendment.
Whether or not the commercial speech at issue is unlawful has not been determined yet. The presumption is that it is not unlawful. Commercial speech is speech "presumptively protected by the First Amendment," and an exception to the general Fourth Amendment seizure rule prohibits its seizure prior to determination of lawfulness. The commercial speech at issue here, the domain names, can moor in the safe harbor of the Court's exception to the general seizure rule. Seizing it before a determination of its unlawfulness is prior restraint.
I realize that it may surprise some people that I now think this since I'm generally seen as being pro-IP. The reality is, I respect the rule of law first and foremost. If one side is abusing the law, I'll call them out for it no matter which side it is. I am all for rights holders exercising their rights--they just have to do so without violating the other side's rights.
On the post: Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
In Central Hudson, the Supreme Court held that for commercial speech to come within First Amendment protection, "it at least must concern lawful activity and not be misleading." In other words, if the commercial speech is being used for unlawful purposes, there is no First Amendment protection. The domain names in these seizures are commercial speech, and they are not protected by the First Amendment because they being used for unlawful activity.
On the post: Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
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That's not exactly accurate. Domain names only fall into the First Amendment exception to the Fourth Amendment if they are "materials presumptively protected by the First Amendment." Do you have any proof that domain names are "presumptively protected"?
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Comparing copyright infringement to criminal conspiracy liability is problematic. One sounds in tort and the other in criminal law. Let's stick to tort principles if we're talking about copyright infringement. The biggest problem with your analogies is that copyright infringement is a strict liability tort. This means intent is irrelevant. Conspiracy, on the other hand, requires an intent element to be proved beyond a reasonable doubt.
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That's exactly right. If they're going to argue that the defendants should be joined together like that into one lawsuit, then that means they are all liable for ONE infringement. They would split the liability between them. If there's 5,000 defendants and the liability is the maximum $150,000, then each defendant is on the hook for $30.
From the Copyright Act: "the copyright owner may elect . . . an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally." 17 U.S.C. 504.
It's the number of works infringed that matters, not the number of infringements of that work and not the number of infringers. I'm really surprised that this is getting more attention since it's pretty detrimental to the mass infringement suit business model.
If defendants knew that they are only potentially on the hook for their share of one infringement they probably wouldn't be inclined to settle. In one sense, the more defendants joined together, the better.
These mass infringement lawsuits can't have it both ways. They can't argue that the defendants acted in concert for the purpose of joining them together into the same lawsuit, and then later pretend like the defendants didn't act in concert when it comes time to look at damages.
They're trying to have their cake and eat it. Spread the word. :)
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