Well, considering the property owner is entitled to a hearing within 14 days in a typical seizure case, the clock seems to be winding down for the government's case here.
They don't even have hearings scheduled for these domain name owners. Not exactly how seizures usually work.
The statute governing these civil forfeiture proceedings is 18 U.S.C. 981. I didn't see anything in there about 14 days. It did mention that the proceedings could be stayed in the government requests it because the investigation is ongoing. Such stays can be granted ex parte. That's my guess as to what's happening here.
I remembered the caselaw I mentioned above dealing with torrent search engines. It was the isohunt/torrentbox case, Columbia Pictures v. Fung. The court held that Fung induced infringement and therefore lost his safe harbor under Section 512 of the DMCA.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
No, because there was *no crime* being committed on many of these sites. All they did was talk about *other* sites (to which they had no connection whatsoever), which talked about still *other* sites. How far down the chain do you think someone should be liable if someone commits the horror of downloading a song? Should Masnick lose TechDirt for writing articles about the people who talked about the people who talked about the people who talked about the downloaders?
In any event, accomplice liability is something the state should have the burden to prove beyond a reasonable doubt before they can just take someone's property out from under them.
These people aren't "accomplices" any more than someone who is asked where they can score some pot and responds by telling him where the bad part of town is located is an accomplice to selling drugs. If the state tried to arrest someone as an "accomplice" for doing that, they'd be laughed out of court.
I don't really know enough about the sites that were seized to say what went on there. Clearly the prosecutor thought they were being used for crimes, and the judge agreed.
If you ask me where to score pot, and I help you score some, then I'm an accomplice. That's what they teach in law school anyway.
The only thing torrent-finder does is allow users to search other websites for torrents (and it links to pages at those other websites, not to the torrent files themselves). It is, to use your words, "content neutral." The only reason you think its purpose is infringement, is because in your mind, "torrent" = "piracy."
Again, here you're singling out a technology as having no purpose other than "making copyright infringement easier." You're confusing the technology itself with what users do with that technology.
As for the "we all know it" comment: In the late 1990's, "we all knew" that DivX was only used to create infringing VCD's. It was common knowledge. Today, Hollywood studios regularly use their codec for film trailers, and indie filmmakers use it to distribute their films online. The codec is even built into most DVD players.
This also shows how Big Media has twisted the American thought process. They have pounded the notion that "torrent" = "theft" into our brain pans. Their goal was to equate file sharing (all file sharing) with "theft," so that they can blackmail an entire industry.
But since they've caused people to associate using torrents with downloading movies, that's what most people do. Thus, it becomes a self-fulfilling prophecy. In effect, Big Media has been unintentionally complicit in torrent piracy. "The chickens have come home to roost."
Does torrent-finder get used to commit crimes? Wasn't it set up for just that purpose? I don't think torrent=piracy. I do think torrent-finder=piracy. Fifteen seconds on that site and that much was clear.
You can't claim that "searching for torrents" is the same as intent to infringe, use that as a defense for shutting down torrent search sites, then say "they were infringing because they were shut down."
The fact that .torrent is a protocol. Searching for a torrent file is not, in and of itself, an intent to infringe. In other words, torrent-finder is also a "neutral search engine." It does not somehow disallow the search for legitimate content.
Weren't you the one that claimed record industries &etc. were not targeting a "technology," but a "use" of technology? Here is a clear-cut example where the technology itself is being targeted.
And, again, go to any search engine and type in "batman torrent." Count how many pages it links to, do not themselves link to infringing content. By your argument, then, that search engine is not "content neutral."
When I typed "Harry Potter" into torrent-finder and got thousands of hits that looked like illicit copies of Harry Potter movies, it didn't seem so "neutral" to me. How do I get torrent-finder to NOT return only illicit stuff?
Sorry, I didn't mean to ignore you. When people bring up the Holocaust and such, I stop reading. Godwin's Law and all. It's not you, it's me. I just don't like going there.
An arrest warrant isn't a seizure. Not unless they're auctioning off arrestees somewhere that I haven't heard of...
When someone is arrested, the state is required to present an indictment within 72 hours and then prove the person guilty beyond a reasonable doubt at trial.
If those steps were also required of property seizures, I don't think anyone here would be complaining.
Arrest warrants are seizures under the Fourth Amendment. That's been the case since the Constitution was enacted.
Well, considering the property owner is entitled to a hearing within 14 days in a typical seizure case, the clock seems to be winding down for the government's case here.
They don't even have hearings scheduled for these domain name owners. Not exactly how seizures usually work.
And don't forget the seizures from June. I'm not aware of any of those seizures resulting in a hearing. Weird.
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
No, because again accomplices have to be acting in concert based on a planned criminal act.
Not the case here, either.
The caselaw I've read confirms that anyone who incites, encourages, abets, or assists in the perpetration of a crime is a party to the crime and can be convicted as if they perpetrated the crime themselves. Accomplices are generally liable for the reasonably foreseeable results of the contemplated crime. Accomplices need not know each other personally, nor must they know the other even exists. Sounds like a perfect match here, IMO. Don't you think the operators of these sites knew "someone" was using them to commit a crime?
You don't think the website operators of such sites as torrent-finder and thepiratebay incite, encourage, abet, or assist in the perpetration of a crime? I think they clearly do. That's what those sites exist for, and we all know it.
Re: Just because you can, doesn't mean you should.
Being caught with a boat full of dope != Having a website which might aid someone in finding infringing material. To use the same yardstick, and say that there should be more seizures is a failure to understand the scale and scope of this issue. I don't believe you can make an argument that your 1st amendment rights are being violated because your boat full of dope got seized. However, in the case of a website, that issue is a lot less clear cut.
Does the DEA let the beer industry tell them that a particular white powdery substance is cocaine? Do they make announcements of big drug busts on the steps of the Anhueser-Busch headquarters? I think not.
You're allowing some fairly large leaps of faith by bureaucrats. Those same bureaucrats don't have a clear cut authority, and are taking advice from less than objective observers. If that's not enough to wait until the trial is done before you begin to seize anything, you are failing to understand the concept of rule of law. The rule of law is to keep the big guy with the stick from beating the little guy with no stick, just because he can.
I agree with you in that I think these seizures raise legitimate First Amendment issues. The balance between the First Amendment and the Copyright Clause is an interesting one. Throw in the Fourth and Fifth Amendments like we have here, and I'm making popcorn.
You bring up the idea that the "industry" is just telling the feds which sites they want taken down, and the feds follow orders. I don't think it's like that at all. I think the "industry" points out sites they don't like, and then the feds do their own investigation to decide independently which sites to go after. That's what the press release said anyway, and I've no reason to think otherwise.
Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Joe- thank you very much for your posts here. There are so many incorrect opinions about the law thrown up on this site that your commentary is absolutely crucial.
Thanks. I'm trying to "keep it real." I'm trying to keep it positive too, but enough about my medication management. :)
If DHS can take control of hundreds of domain names, why is wikileak not shutdown. Not that i want it shutdown, but you have to ask.. A few video's get DHS sites shutdown, but a "classified" leak that threatens world leaders isnt important enough to get a site shutdown?
Who's playing who?
I think the reason is that wikileaks uses a .org top-level domain which is not managed by a company on U.S. soil, i.e., they could not serve a seizure warrant on them.
It is really weird that they haven't actually sued one named defendant yet, at least not that I know of. That's not helping their credibility. How many months have they been saying they're about to do so? Since August, if memory serves.
For a seizure of property? The hearing should logically be BEFORE said property is forfeited. To do otherwise is an aberration of 'innocent until proven guilty,' and no matter how you hash it out, that pretty much stands in the public mind.
You don't need a full-blown hearing to seize a person, i.e., to arrest them. Why would you need one to seize property?
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re: Re: Re:
They don't even have hearings scheduled for these domain name owners. Not exactly how seizures usually work.
The statute governing these civil forfeiture proceedings is 18 U.S.C. 981. I didn't see anything in there about 14 days. It did mention that the proceedings could be stayed in the government requests it because the investigation is ongoing. Such stays can be granted ex parte. That's my guess as to what's happening here.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Eric Goldman's blog entry: http://blog.ericgoldman.org/archives/2009/12/torrent_sites_i.htm
The court's decision: http://www.wired.com/images_blogs/threatlevel/2009/12/fungruling.pdf
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: I have to disagree..
How did they get their "seized property" back so quickly?
Are the courts that fast now?
The domain names went back up in hours? I doubt that.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
In any event, accomplice liability is something the state should have the burden to prove beyond a reasonable doubt before they can just take someone's property out from under them.
These people aren't "accomplices" any more than someone who is asked where they can score some pot and responds by telling him where the bad part of town is located is an accomplice to selling drugs. If the state tried to arrest someone as an "accomplice" for doing that, they'd be laughed out of court.
I don't really know enough about the sites that were seized to say what went on there. Clearly the prosecutor thought they were being used for crimes, and the judge agreed.
If you ask me where to score pot, and I help you score some, then I'm an accomplice. That's what they teach in law school anyway.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re:
Again, here you're singling out a technology as having no purpose other than "making copyright infringement easier." You're confusing the technology itself with what users do with that technology.
As for the "we all know it" comment: In the late 1990's, "we all knew" that DivX was only used to create infringing VCD's. It was common knowledge. Today, Hollywood studios regularly use their codec for film trailers, and indie filmmakers use it to distribute their films online. The codec is even built into most DVD players.
This also shows how Big Media has twisted the American thought process. They have pounded the notion that "torrent" = "theft" into our brain pans. Their goal was to equate file sharing (all file sharing) with "theft," so that they can blackmail an entire industry.
But since they've caused people to associate using torrents with downloading movies, that's what most people do. Thus, it becomes a self-fulfilling prophecy. In effect, Big Media has been unintentionally complicit in torrent piracy. "The chickens have come home to roost."
Does torrent-finder get used to commit crimes? Wasn't it set up for just that purpose? I don't think torrent=piracy. I do think torrent-finder=piracy. Fifteen seconds on that site and that much was clear.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re: Re: Re:
You can't claim that "searching for torrents" is the same as intent to infringe, use that as a defense for shutting down torrent search sites, then say "they were infringing because they were shut down."
The fact that .torrent is a protocol. Searching for a torrent file is not, in and of itself, an intent to infringe. In other words, torrent-finder is also a "neutral search engine." It does not somehow disallow the search for legitimate content.
Weren't you the one that claimed record industries &etc. were not targeting a "technology," but a "use" of technology? Here is a clear-cut example where the technology itself is being targeted.
And, again, go to any search engine and type in "batman torrent." Count how many pages it links to, do not themselves link to infringing content. By your argument, then, that search engine is not "content neutral."
When I typed "Harry Potter" into torrent-finder and got thousands of hits that looked like illicit copies of Harry Potter movies, it didn't seem so "neutral" to me. How do I get torrent-finder to NOT return only illicit stuff?
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: international
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re: Re: Re: Law
When someone is arrested, the state is required to present an indictment within 72 hours and then prove the person guilty beyond a reasonable doubt at trial.
If those steps were also required of property seizures, I don't think anyone here would be complaining.
Arrest warrants are seizures under the Fourth Amendment. That's been the case since the Constitution was enacted.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re: Re: Re:
They don't even have hearings scheduled for these domain name owners. Not exactly how seizures usually work.
And don't forget the seizures from June. I'm not aware of any of those seizures resulting in a hearing. Weird.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Not the case here, either.
The caselaw I've read confirms that anyone who incites, encourages, abets, or assists in the perpetration of a crime is a party to the crime and can be convicted as if they perpetrated the crime themselves. Accomplices are generally liable for the reasonably foreseeable results of the contemplated crime. Accomplices need not know each other personally, nor must they know the other even exists. Sounds like a perfect match here, IMO. Don't you think the operators of these sites knew "someone" was using them to commit a crime?
You don't think the website operators of such sites as torrent-finder and thepiratebay incite, encourage, abet, or assist in the perpetration of a crime? I think they clearly do. That's what those sites exist for, and we all know it.
On the post: Talking About Homeland Security's Domain Seizures
Re:
This is just too funny.
It's like "Free Ammunition Day" at the gun shop...
I wondered why the clock at the bottom left told the time in Moscow. :)
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: international
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Just because you can, doesn't mean you should.
Does the DEA let the beer industry tell them that a particular white powdery substance is cocaine? Do they make announcements of big drug busts on the steps of the Anhueser-Busch headquarters? I think not.
You're allowing some fairly large leaps of faith by bureaucrats. Those same bureaucrats don't have a clear cut authority, and are taking advice from less than objective observers. If that's not enough to wait until the trial is done before you begin to seize anything, you are failing to understand the concept of rule of law. The rule of law is to keep the big guy with the stick from beating the little guy with no stick, just because he can.
I agree with you in that I think these seizures raise legitimate First Amendment issues. The balance between the First Amendment and the Copyright Clause is an interesting one. Throw in the Fourth and Fifth Amendments like we have here, and I'm making popcorn.
You bring up the idea that the "industry" is just telling the feds which sites they want taken down, and the feds follow orders. I don't think it's like that at all. I think the "industry" points out sites they don't like, and then the feds do their own investigation to decide independently which sites to go after. That's what the press release said anyway, and I've no reason to think otherwise.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Thanks. I'm trying to "keep it real." I'm trying to keep it positive too, but enough about my medication management. :)
On the post: Talking About Homeland Security's Domain Seizures
Re:
Who's playing who?
I think the reason is that wikileaks uses a .org top-level domain which is not managed by a company on U.S. soil, i.e., they could not serve a seizure warrant on them.
On the post: Talking About Homeland Security's Domain Seizures
Maybe it's the angle.
On the post: Silly 'Vote For Us!' Post
Re: Saving my vote...
Would you settle for Blog Law Blog? http://bloglawblog.com/blog/
On the post: Silly 'Vote For Us!' Post
Congrats, MM. You deserve it.
On the post: Hurt Locker Producers Demand Sanctions Against Lawyer Offering DIY Legal Kits
Re:
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re: Law
You don't need a full-blown hearing to seize a person, i.e., to arrest them. Why would you need one to seize property?
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