Re: Re: Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Quite familiar. More so than you, apparently.
One significant element of conspiracy is that the conspirators have to know each other and agree amongst themselves to commit the predicate offense.
Hardly the case here.
Would you like to try again?
Drop the attitude, please, or else I'll find someone else to chat with.
I was throwing out conspiracy and accomplice liability as ways that these website operators could be criminally liable. Obviously the accomplice liability fits your hypo, not the conspiracy liability. Do you agree that they could be liable as accomplices?
Not according to everything we've heard from ICE to date.
Really? Did ICE say that the domain name owners would never get their day in court? I must have missed that.
I can suggest it because it hasn't happened for the people involved, nor is it scheduled to. If that's beyond you, I'm not sure how I can help at this point.
How much time does the prosecutor have to initiate the proceedings? That's the question. Just because it hasn't happened yet doesn't mean it's not happening.
Interesting theory. Now exactly how do we determine where an intangible item that has no physical substance (like a domain name) is located?
It's property just like any other property, no?
The logical way would be to say the domain name exists wherever the site it resolves to is hosted but... let me guess... we're not going to do that, are we? We're going to just declare that all domain names exist in America because that allows ICE to seize them, right?
Re: Re: Re: Re: Re: Re: Re: Due process is not the problem
Okay, and under those statutes, point out to me the part that criminalizes linking to a site that links to a site where infringement occurs.
Or, in other words, point out where in the code third party criminal liability attaches merely for talking about sites that talk about other sites where infringing material exists.
Are you familiar with how conspiracy and accomplice liability works in the criminal law?
I *am* a fed and that's nonsense. Of course you don't warn someone ahead of time if you're executing a search or arrest warrant but those things are just the first step in the process. After you conduct the search or make the arrest, the defendant has the right to defend himself at trial. And if it's a seizure warrant, you don't get to just walk in and seize someone's home or car and walk away. You have to give them a hearing to defend themselves against the seizure and if the government can't prove its case, they get the property back.
Here there are no trials or hearings. Just an accusation from some record company or movie studio that "that web site has our stuff" or even "that web site it talking about our stuff" and we don't like it! So then the government just takes it. No subsequent hearing to determine if the taking was valid, or if there really *was* copyrighted material on it, or if there's any affirmative defenses applicable (e.g., fair use), nothing.
It's the very antithesis of due process.
Nonsense. People with ownership or possessory interests in the domain names can have their day in court. They are allowed to an adversary hearing on the merits. How you can suggest otherwise is beyond me.
And that doesn't even touch the jurisdictional issues involved with the US seizing domains belonging to foreign citizens in foreign countries for violating US law, which they aren't even subject to in the first place.
I imagine that any foreign-owned property that is determined to be used for crime that happens to be in the U.S. is subject to seizure.
You keep saying things like this, and yet why are there no arrests? No arrest warrants? They're only seizing domain names and not the supposed criminals? Stop and think about that a moment. Depriving someone of their livelihood on the presumption of guilt without actually trying the suspect is all right with you.
It's not a presumption of guilt, it's a showing of probable cause to a judge who signs off on it.
Re: Re: Re: Re: Re: Due process is not the problem
So you think that blocking an entire websight because some user posted a link to an allegedly copyright infringing file is sensible?
We don't really know what evidence they came up with in determining whether or not to seize a certain domain name, so it's hard to say really. Clearly the prosecutor thought there was criminal infringement occurring and the judge agreed.
oh and ... equating a URL to actual cocaine? really?
I wasn't equating them, I was making an analogy. Taking the speed boat of the smuggler is like taking the domain name of the infringer in that they are both tools the criminals use.
Yep, federal district court judges are appointed by the President and confirmed by the Senate for lifetime appointments. Magistrate judges are voted on by the district court judges and serve terms of 4 or 8 years, I think. Magistrate judges handle pretrial motions and such, and they can even hear entire cases if both sides consent, which they often do.
So a civil offense of copyright violation required it to be treated as a criminal offense? I am having a hard time seeing that as a sensible reaction. If it is a violation of civil law why wasn't the action taken following civil law?
Also a correction to my post...As a side note, why were DCMA notices 'not' filed for the material before it went to this point? Isn't that where you start with infringement?
The fact that the feds are using the forfeiture proceedings indicate that they believe there is criminal copyright infringement being done on these sites. The only people who can take action in a criminal matter like this is the feds. Civil action could be taken too, but that would be done by the rights holders and not the government. These sites potentially could be looking at both criminal and civil liability for the same infringement.
I'm trying to respond, it's just hard to say anything in particular when we don't know what the fed's investigation of these sites turned up.
I'm wondering now if the feds can seize a site where they find criminal infringement even if they don't suspect the site's operators of being involved in the crime. I'm inclined to think that they can. Not really sure though...
You need to go look up why ICE was created, because I can tell you it certainly wasn't created to enforce IP laws.
Perhaps it's not part of their original mandate, I don't know, but it's clearly part of their mandate now. If the President tells a bunch of agencies to get together and enforce IP laws, they do.
That warrant I linked to earlier was from June and it was for 7 domain names being seized by one court, the U.S. District Court for the Southern District of New York.
This latest round of seizures involved several different district courts, according to the press release: "Southern District of New York; District of Columbia; Middle District of Florida; District of Colorado; Southern District of Texas; Central District of California; Northern District of Ohio; District of New Jersey; and the Western District of Washington."
Notice that torrent-finder does not link to infringing material. They link to third party websites, and those websites link to (potentially) infringing content.
By your standard, Google, Bing, and Yahoo! are also guilty of infringement. Why, right now you can go to Altavista, type in "batman torrent," and it will come up with links to torrentz.com and The Pirate Bay - just like torrent-finder.
The difference is that neutral search engines can be used incidentally to locate illicit materials, while the torrent search engines are dedicated to the task.
As for the iframes, so what? About.com does this all the time (and it's annoying as hell). Google Image Search also shows original web page results within a Google frame, and I'm betting at least some of those images are infringing on copyrights. I guess they're guilty of criminal infringement, too.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: international
Works for me. How about you?
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re:
Um, because that's how seizures work.
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: Due process is not the problem
One significant element of conspiracy is that the conspirators have to know each other and agree amongst themselves to commit the predicate offense.
Hardly the case here.
Would you like to try again?
Drop the attitude, please, or else I'll find someone else to chat with.
I was throwing out conspiracy and accomplice liability as ways that these website operators could be criminally liable. Obviously the accomplice liability fits your hypo, not the conspiracy liability. Do you agree that they could be liable as accomplices?
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Law
Really? Did ICE say that the domain name owners would never get their day in court? I must have missed that.
I can suggest it because it hasn't happened for the people involved, nor is it scheduled to. If that's beyond you, I'm not sure how I can help at this point.
How much time does the prosecutor have to initiate the proceedings? That's the question. Just because it hasn't happened yet doesn't mean it's not happening.
Interesting theory. Now exactly how do we determine where an intangible item that has no physical substance (like a domain name) is located?
It's property just like any other property, no?
The logical way would be to say the domain name exists wherever the site it resolves to is hosted but... let me guess... we're not going to do that, are we? We're going to just declare that all domain names exist in America because that allows ICE to seize them, right?
I dunno. You tell me.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Dur process is not the problem
Right, but the property, i.e. the domain name, is in the U.S., and that property was seized.
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
Or, in other words, point out where in the code third party criminal liability attaches merely for talking about sites that talk about other sites where infringing material exists.
Are you familiar with how conspiracy and accomplice liability works in the criminal law?
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re:
Seems like that's not being followed in these domain name cases.
Of course they will get a hearing. Relax.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Law
Here there are no trials or hearings. Just an accusation from some record company or movie studio that "that web site has our stuff" or even "that web site it talking about our stuff" and we don't like it! So then the government just takes it. No subsequent hearing to determine if the taking was valid, or if there really *was* copyrighted material on it, or if there's any affirmative defenses applicable (e.g., fair use), nothing.
It's the very antithesis of due process.
Nonsense. People with ownership or possessory interests in the domain names can have their day in court. They are allowed to an adversary hearing on the merits. How you can suggest otherwise is beyond me.
And that doesn't even touch the jurisdictional issues involved with the US seizing domains belonging to foreign citizens in foreign countries for violating US law, which they aren't even subject to in the first place.
I imagine that any foreign-owned property that is determined to be used for crime that happens to be in the U.S. is subject to seizure.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Dur process is not the problem
Last time I checked, 18 U.S.C. 2323 didn't apply in Belize or New Zealand or Mongolia.
Who said they bind internationally? I don't really follow you.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re:
It's not a presumption of guilt, it's a showing of probable cause to a judge who signs off on it.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Due process is not the problem
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Due process is not the problem
We don't really know what evidence they came up with in determining whether or not to seize a certain domain name, so it's hard to say really. Clearly the prosecutor thought there was criminal infringement occurring and the judge agreed.
oh and ... equating a URL to actual cocaine? really?
I wasn't equating them, I was making an analogy. Taking the speed boat of the smuggler is like taking the domain name of the infringer in that they are both tools the criminals use.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Re:
We're talking about the sites that do, aren't we?
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: Not physical goods
On the post: Five Questions For Homeland Security Concerning Its Online Censorship Campaign
Re: Re: Re: Re:
Also a correction to my post...As a side note, why were DCMA notices 'not' filed for the material before it went to this point? Isn't that where you start with infringement?
The fact that the feds are using the forfeiture proceedings indicate that they believe there is criminal copyright infringement being done on these sites. The only people who can take action in a criminal matter like this is the feds. Civil action could be taken too, but that would be done by the rights holders and not the government. These sites potentially could be looking at both criminal and civil liability for the same infringement.
On the post: If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?
Re: Re: Re: Re: Re: Re: Re: Re:
I'm trying to respond, it's just hard to say anything in particular when we don't know what the fed's investigation of these sites turned up.
I'm wondering now if the feds can seize a site where they find criminal infringement even if they don't suspect the site's operators of being involved in the crime. I'm inclined to think that they can. Not really sure though...
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Not physical goods
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re: Re: Not physical goods
Perhaps it's not part of their original mandate, I don't know, but it's clearly part of their mandate now. If the President tells a bunch of agencies to get together and enforce IP laws, they do.
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: Not physical goods
This latest round of seizures involved several different district courts, according to the press release: "Southern District of New York; District of Columbia; Middle District of Florida; District of Colorado; Southern District of Texas; Central District of California; Northern District of Ohio; District of New Jersey; and the Western District of Washington."
http://www.ice.gov/news/releases/1011/101129washington.htm
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Re: Re: Re:
By your standard, Google, Bing, and Yahoo! are also guilty of infringement. Why, right now you can go to Altavista, type in "batman torrent," and it will come up with links to torrentz.com and The Pirate Bay - just like torrent-finder.
The difference is that neutral search engines can be used incidentally to locate illicit materials, while the torrent search engines are dedicated to the task.
As for the iframes, so what? About.com does this all the time (and it's annoying as hell). Google Image Search also shows original web page results within a Google frame, and I'm betting at least some of those images are infringing on copyrights. I guess they're guilty of criminal infringement, too.
Nope, those search engines are protected by the fair use doctrine since their use is transformative. Read Arriba Soft: http://scholar.google.com/scholar_case?case=13767420941977220880&hl=en&as_sdt=2&as_vis=1 &oi=scholarr
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