The argument in the USCG case was that for purposes of joinder it was the "same transaction, occurrence, or series of transactions or occurrences" because the defendants were sharing the same movie, i.e., the same torrent from the same seed. If people are sharing the same torrent from the same seed, even if at different times, it is a "series of transactions" since each defendant necessarily can trace their copy back to the same seed. If I take a DVD and make copies for two friends, and they make copies for two of their friends, etc., we are all liable for the same infringement. I think that's a fairly settled issue of copyright law.
Perhaps the plaintiff didn't argue the "torrent swarm equals joint tortfeasors" theory. If not, I wonder why not. I tried to get a copy of the complaint for this case from PACER to see what was argued, but it tells me I'm not authorized to see it. I guess the case is sealed.
The judge here says, "merely committing the same type of violation in the same way does not link defendants together for purposes of joinder." I certainly agree with that, but I think it misses that point that sharing the same torrent from the same seed is more than merely committing the same type of violation in the same way. Every person in the swarm is an actor in the same series. All are taking part in the same infringement, and all are joint tortfeasors.
LOL! I think "domain name" would be a common noun since it represents a general thing. Proper nouns represent specific things. That's what I recall from grade school anyway. :)
Substantially repeating a comment from the previous discussion....
The Supreme Court disagrees with you.
In Fort Wayne Books v Indiana, the Supreme Court struck down a pretrial seizure on First Amendment grounds.
That's a great quote, thanks. I stand corrected. I was thinking of the "general rule" and I didn't know the Court identified this exception. I'll tell my professors that I was ill-prepared for internet debate on the matter. :)
So the issue then is whether or not domain names are "materials presumptively protected by the First Amendment." Apparently the judge here did not think that they are. I'm inclined to agree with that since I don't think domain names are speech. The protected speech would be the information on the server, and that was left untouched.
Regardless of when or in what format the magistrate questions it (I can't see how you think that's what Mike was talking about) - the point is there are a lot of legal grey-areas-at-best in the application, and scrutinizing/questioning them is exactly what the magistrate is supposed to do
Agents applying for warrants don't have to defend the possible constitutional implications of the warrant's execution. That's for the lawyers to do later. The only thing the judge is looking for is whether the alleged facts sufficiently constitute reasonable suspicion.
I think the point being that the judge's job is to protect against invalid seizure warrants, and should be especially careful in cases such as these when first amendment issues are relevant.
The fact that the warrant didn't even pay lip service to the first amendment should have made the judge at least question, and probably reject the warrant.
That's just not how it works. The judge is only considering whether sufficient facts have been alleged to constitute probable cause. Whether or not the seizure of the domain name violates the First Amendment is not relevant to the court's analysis of the application's sufficiency. Of course such concerns could be raised at trial, but for the warrant purposes they are irrelevant.
They didn't demand payment from innocent people, not legally speaking. They offered to settle with people against whom they had prima facie evidence of infringement. This is done everyday in a myriad of contexts. USCG did threaten the possibility of more damages than they would legally be entitled to with some defendants, and that's what the pending class action suit is about. You can't say "if you don't settle with us you will be facing up to $150K in statutory damages" if that's not in fact the case. They really screwed up on that one, and it's all the more unforgivable considering they put themselves out to the public as experts on copyright law.
I don't buy the "slavery was bad so that means I can infringe" argument. Is that really how you rationalize it? By that logic I can break any law I want, right? Give me a break.
A few people defended by EFF would cost USCG millions alone.
A million? Where do I sign up? Just kidding... How do you figure? I don't think the cases are that complicated. And don't forget that USCG has the advantage since it gets to decide which few cases out of the thousands they have to prosecute. They're going to pick the easiest cases to win. I think they'll pick cases where there's no plausible defense and where the defendant has the cash should USCG win. Or just maybe the defendant really did it. Even if they do spend a million, the real question is how much money they brought in while doing so. A few well-picked defendants could be just the jolt they need to get those pesky stragglers to pay up. :)
Dunlap announced back in August that he had made arrangements with other firms to file complaints against individual defendants and that they would be doing so soon thereafter. That was four months ago. It's starting to look bad. Surely they're going to make an example of a few people. They have to. It might be costly, but it's not as costly as having everyone think there's no chance they'll actually come after them. I wonder what the delay is...
No, it's NOT backed with reason and research. You just claim that it is, but it often turns out not to be. That's why people call you those names.
Are you referring to my views of copyright? If so, then I think you misunderstand my position. I don't claim the research proves copyright is the right choice. I don't know what the research says. I let other people worry/argue about that. The bottom line is that Article I, Section 8, Clause 8 of the Constitution gives Congress the power to create copyright laws. Courts will review those laws with great deference since Congress is exercising an enumerated power. That being the case, I don't see any real possibility that Congress is all of the sudden going to do away with copyright. Nor will the courts strike down copyright as unconstitutional. In other words, copyright isn't going anywhere and there's pretty much nothing anyone can do about it. I look at it pragmatically.
If you weren't talking about copyright, then you're statement is too vague for me to address directly since I don't know what posts of mine you're referring to.
Wow, if that was a joke, then the joke was on me! LOL! Sorry I overreacted.
you come off as a shill for the entrenched lobbyists (big media/ entertainment industry)with virtually no regard for "society as a whole" over the right of the monopolist/copyright/content creator to be paid repeatedly for the same piece of work
And I generally think many people on techdirt have little regard for society as a whole, so the feeling's mutual I suppose. Honestly, I couldn't care less what the copyright laws are. What I do care about is people thinking it's OK to infringe because they disagree with the law. Actually, I don't even care if people infringe. I just don't want to hear any whining if they get caught. It's not so much that I'm pro-big media. I'm pro-law and order. If you don't agree with the laws, work to change them. If you can't get them changed, then too bad. It's part of our social contract that we have a duty to follow the law whether we agree with it or not. To me, that is how you respect society as a whole--if you respect it, then you'll follow its rules. Otherwise you're just taking the law into your own hands and you're putting your needs ahead of those of others.
My understanding is that he was authorized to access the information. So 18 U.S.C. 1030(a)(2) wouldn't apply.
The statute says the access in question must have been in excess of his authorized access. I don't really know what exactly that means, but apparently they thought it applied here. If it doesn't, I'm sure his lawyer will be pointing that out.
Either way, the guy's OK in my book. Not the brightest bulb in the box, perhaps, but his "treason" is far less serious than the activities revealed in the leaked documents.
I don't think it's treason, or even "treason," but he's not OK in my book. I hope he goes to jail for a very long time. Whistleblowing can be a good thing. If he felt a need to blow the whistle, he should have done it through proper channels. We can't have people who are entrusted with classified information just spilling the beans in public when they don't like what they see. That's not how it works.
between TAM, AC I & II, Average Joe, Alfred and other troll types how could you possibly get a hangover? I mean seriously there isn't enough time between their posts to sober up!
How am I a troll exactly? Am I making inflammatory or off-topic posts? Please, let's hear your reasons for saying that I am. I post what I honestly believe to be true, backed with reason and research. It never ceases to amaze me how much venom and anger I get in response to my posts from people on TD. I'm called names and accused of all sorts of things for stating my beliefs. In lots of people's minds, apparently, anyone who disagrees with them is (1) evil, (2) lying, (3) stupid, (4) a sorry sack of shit. Unreal. And by the way, your post, the very one I'm responding to now, is inflammatory. Are you a troll?
No... the whistle blowing defense is a way to make the exception to the law, not to repeal it. If military personal were required to blindly follow orders, they would not be able to raise moral objections to questionable orders... i.e., blow the whistle.
Huh? Of course there are ways for them to "blow the whistle" in those kinds of circumstances. See, for example, the Military Whistleblower Protection Act.
Make a choice.
See, hear, or otherwise sense your enemy in front of you out in the open without restrictions. aka anarchy?
or
Keep it all hush hush in the sake of morality? aka "shoulda,coulda,woulda"
That didn't make anything clear. There are proper channels for whistleblowing in the military. From what I know about his case, he did not follow these channels.
Right. The statutes in question are general intent statutes, so it's enough to show he intended to commit the criminal acts themselves. If he's really telling people that his intent was to cause "worldwide discussion, debates and reform" then that is an extremely stupid thing to be doing--by doing so he is admitting that he had the requisite mental state to be found guilty of the crimes.
As you have so often been fond of saying in the past, that is not for you to decide. Go blow a weasel.
Huh? What I'm saying is true as a matter of law. His intent to cause "worldwide discussion, debates and reform" is irrelevant in determining liability.
Huh? Accessing and communicating restricted information in the way that he is accused of is a crime. Are you making a normative argument that it shouldn't be a crime? If so, perhaps you should be more clear about it.
Manning made it clear that if he was trying to cause problems for the US or had malicious intentions, he could have sold the info to foreign governments. However, his reasoning for leaking the info was clear, saying he was hoping it would cause "worldwide discussion, debates and reform."
Looking at the crimes he is accused of...
Under UCMJ Article 92 he is guilty if there was in effect a lawful order, he had a duty to obey it, and he disobeyed the order. Intent is irrelevant, and it is a strict liability offense.
Under 18 U.S.C. 793(e) he is guilty if he has information that could be used to injure the United States and then he "willfully communicates" that information. Intent is certainly relevant here, but not in the way that you suggest. They do not need to prove that he intended to injure the United States since this is not a specific intent statute. Instead, it is a general intent statute and it is enough to prove that his communication of the information was willful. His intentions otherwise are irrelevant.
Under 18 U.S.C. 1030(a)(2) he is guilty if he "knowingly" accessed a computer to obtain restricted information in a way that exceeds his authorization and then "willfully communicates" that information. This is also a general intent statute, and it is enough to prove that he intended to access and communicate the information. His intentions otherwise are irrelevant.
Under 18 U.S.C. 1030(a)(2) he is guilty if he "intentionally" accesses a computer in excess of his authorization and obtains information. All they need to prove is his intent to access the computer and obtain the information. His intentions otherwise are irrelevant.
I think his intention to cause "worldwide discussion, debates and reform" would come into play at his sentencing, but it doesn't play a part in determining his guilt. He could have the absolute best intentions and still be guilty of the crimes.
On the post: Court Shoots Down Mass Porn Copyright Infringement Lawsuits
Perhaps the plaintiff didn't argue the "torrent swarm equals joint tortfeasors" theory. If not, I wonder why not. I tried to get a copy of the complaint for this case from PACER to see what was argued, but it tells me I'm not authorized to see it. I guess the case is sealed.
The judge here says, "merely committing the same type of violation in the same way does not link defendants together for purposes of joinder." I certainly agree with that, but I think it misses that point that sharing the same torrent from the same seed is more than merely committing the same type of violation in the same way. Every person in the swarm is an actor in the same series. All are taking part in the same infringement, and all are joint tortfeasors.
On the post: Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
Re: Re: Re: Re: Re: Re: Discussion
LOL! I think "domain name" would be a common noun since it represents a general thing. Proper nouns represent specific things. That's what I recall from grade school anyway. :)
On the post: Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
Re: Re: Re: Re: Discussion
The Supreme Court disagrees with you.
In Fort Wayne Books v Indiana, the Supreme Court struck down a pretrial seizure on First Amendment grounds.
That's a great quote, thanks. I stand corrected. I was thinking of the "general rule" and I didn't know the Court identified this exception. I'll tell my professors that I was ill-prepared for internet debate on the matter. :)
So the issue then is whether or not domain names are "materials presumptively protected by the First Amendment." Apparently the judge here did not think that they are. I'm inclined to agree with that since I don't think domain names are speech. The protected speech would be the information on the server, and that was left untouched.
What's your take?
On the post: Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
Re: Re: Discussion
Agents applying for warrants don't have to defend the possible constitutional implications of the warrant's execution. That's for the lawyers to do later. The only thing the judge is looking for is whether the alleged facts sufficiently constitute reasonable suspicion.
On the post: Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
Re: Re: Discussion
The fact that the warrant didn't even pay lip service to the first amendment should have made the judge at least question, and probably reject the warrant.
That's just not how it works. The judge is only considering whether sufficient facts have been alleged to constitute probable cause. Whether or not the seizure of the domain name violates the First Amendment is not relevant to the court's analysis of the application's sufficiency. Of course such concerns could be raised at trial, but for the warrant purposes they are irrelevant.
On the post: More People Calling US Copyright Group's Bluff
Re: Can anyone spell RICO?
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re: Re: Re: Re: Re: Re: Re: Re:
On the post: More People Calling US Copyright Group's Bluff
Re: Re:
A million? Where do I sign up? Just kidding... How do you figure? I don't think the cases are that complicated. And don't forget that USCG has the advantage since it gets to decide which few cases out of the thousands they have to prosecute. They're going to pick the easiest cases to win. I think they'll pick cases where there's no plausible defense and where the defendant has the cash should USCG win. Or just maybe the defendant really did it. Even if they do spend a million, the real question is how much money they brought in while doing so. A few well-picked defendants could be just the jolt they need to get those pesky stragglers to pay up. :)
On the post: More People Calling US Copyright Group's Bluff
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re: Re: Re: Re: Re: Re:
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re: Re: Re: Re: Re: Re:
Are you referring to my views of copyright? If so, then I think you misunderstand my position. I don't claim the research proves copyright is the right choice. I don't know what the research says. I let other people worry/argue about that. The bottom line is that Article I, Section 8, Clause 8 of the Constitution gives Congress the power to create copyright laws. Courts will review those laws with great deference since Congress is exercising an enumerated power. That being the case, I don't see any real possibility that Congress is all of the sudden going to do away with copyright. Nor will the courts strike down copyright as unconstitutional. In other words, copyright isn't going anywhere and there's pretty much nothing anyone can do about it. I look at it pragmatically.
If you weren't talking about copyright, then you're statement is too vague for me to address directly since I don't know what posts of mine you're referring to.
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re: Re: Re: Re: Re: Re:
you come off as a shill for the entrenched lobbyists (big media/ entertainment industry)with virtually no regard for "society as a whole" over the right of the monopolist/copyright/content creator to be paid repeatedly for the same piece of work
And I generally think many people on techdirt have little regard for society as a whole, so the feeling's mutual I suppose. Honestly, I couldn't care less what the copyright laws are. What I do care about is people thinking it's OK to infringe because they disagree with the law. Actually, I don't even care if people infringe. I just don't want to hear any whining if they get caught. It's not so much that I'm pro-big media. I'm pro-law and order. If you don't agree with the laws, work to change them. If you can't get them changed, then too bad. It's part of our social contract that we have a duty to follow the law whether we agree with it or not. To me, that is how you respect society as a whole--if you respect it, then you'll follow its rules. Otherwise you're just taking the law into your own hands and you're putting your needs ahead of those of others.
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re:
My understanding is that he was authorized to access the information. So 18 U.S.C. 1030(a)(2) wouldn't apply.
The statute says the access in question must have been in excess of his authorized access. I don't really know what exactly that means, but apparently they thought it applied here. If it doesn't, I'm sure his lawyer will be pointing that out.
Either way, the guy's OK in my book. Not the brightest bulb in the box, perhaps, but his "treason" is far less serious than the activities revealed in the leaked documents.
I don't think it's treason, or even "treason," but he's not OK in my book. I hope he goes to jail for a very long time. Whistleblowing can be a good thing. If he felt a need to blow the whistle, he should have done it through proper channels. We can't have people who are entrusted with classified information just spilling the beans in public when they don't like what they see. That's not how it works.
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re: Re: Re: Re:
How am I a troll exactly? Am I making inflammatory or off-topic posts? Please, let's hear your reasons for saying that I am. I post what I honestly believe to be true, backed with reason and research. It never ceases to amaze me how much venom and anger I get in response to my posts from people on TD. I'm called names and accused of all sorts of things for stating my beliefs. In lots of people's minds, apparently, anyone who disagrees with them is (1) evil, (2) lying, (3) stupid, (4) a sorry sack of shit. Unreal. And by the way, your post, the very one I'm responding to now, is inflammatory. Are you a troll?
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re:
Huh? Of course there are ways for them to "blow the whistle" in those kinds of circumstances. See, for example, the Military Whistleblower Protection Act.
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re:
Make a choice.
See, hear, or otherwise sense your enemy in front of you out in the open without restrictions. aka anarchy?
or
Keep it all hush hush in the sake of morality? aka "shoulda,coulda,woulda"
That didn't make anything clear. There are proper channels for whistleblowing in the military. From what I know about his case, he did not follow these channels.
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re:
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Re: Re:
Huh? What I'm saying is true as a matter of law. His intent to cause "worldwide discussion, debates and reform" is irrelevant in determining liability.
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Huh? Accessing and communicating restricted information in the way that he is accused of is a crime. Are you making a normative argument that it shouldn't be a crime? If so, perhaps you should be more clear about it.
On the post: US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction
Looking at the crimes he is accused of...
Under UCMJ Article 92 he is guilty if there was in effect a lawful order, he had a duty to obey it, and he disobeyed the order. Intent is irrelevant, and it is a strict liability offense.
Under 18 U.S.C. 793(e) he is guilty if he has information that could be used to injure the United States and then he "willfully communicates" that information. Intent is certainly relevant here, but not in the way that you suggest. They do not need to prove that he intended to injure the United States since this is not a specific intent statute. Instead, it is a general intent statute and it is enough to prove that his communication of the information was willful. His intentions otherwise are irrelevant.
Under 18 U.S.C. 1030(a)(2) he is guilty if he "knowingly" accessed a computer to obtain restricted information in a way that exceeds his authorization and then "willfully communicates" that information. This is also a general intent statute, and it is enough to prove that he intended to access and communicate the information. His intentions otherwise are irrelevant.
Under 18 U.S.C. 1030(a)(2) he is guilty if he "intentionally" accesses a computer in excess of his authorization and obtains information. All they need to prove is his intent to access the computer and obtain the information. His intentions otherwise are irrelevant.
I think his intention to cause "worldwide discussion, debates and reform" would come into play at his sentencing, but it doesn't play a part in determining his guilt. He could have the absolute best intentions and still be guilty of the crimes.
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