So basically "innocent til proven guilty" is thrown out the window. This has shifted the burden of proof to the accused.
This worries me tremendously.
Technically, the forfeiture proceeding is a civil proceeding so there's no "innocent" or "guilty." The burden is on the government to prove by a preponderance of the evidence that the domain names should remain seized.
I must have missed this part in the story. Was there proof that this was happening? Does it even require proof-- or like everything else regarding IP, does it only require an allegation?
I think all we know is that the prosecutor presented probable cause to a judge and the judge signed the warrant. Exactly what proof their investigation uncovered is anyone's guess.
I was under the impression (from what little I know of Viacom v. Youtube) that knowing there is infringing material in the meta sense (e.g., Youtube almost definitely has infringing material on it right now, but I'm not sure what) is not enough to lose your safe harbors. I thought it was determined that the service provider needed to know about specific instances of infringement and do nothing to lose those safe harbors. Further, if this site did adhere to DMCA takedown requests (the only *real* and legally binding way to know if something you host is infringing) then it stands to reason that they still have their safe harbors, and are therefore, as the poster you replied to said, 100% legal.
Am I incorrect in my logic and/or understanding of these things?
I think the argument simply is that the sites were being used to commit criminal copyright infringement, and the safe harbors do not protect criminals.
AJ, the bottom line is that none of this so called property is property of any kind. They are in fact part of a service and should be treated as such. Just because copyright says it's property does not make it so.
We could get into a debate on the theory, but the bottom line is really that the law says it's property that can be seized, and so it is property that really gets seized.
torrent-finder (and other similar search sites) don't focus on the 'illicit part of the web'. They index all of the web that has a particular file type. If the makers of Harry Potter released a torrent it would show up on the site.
But they index that particular file type for the purpose of making copyright infringement easier. That's why those sites exist. That's why people use those sites. That's pretty much the only reason why people use those sites. We all know it.
Google on the other hand is used for so much more. It's ability to be used to locate illicit material is incidental.
And the maker of Harry Potter didn't release any torrents that I'm aware of. That's why I said I thought all of the results there were illicit.
Heh. This is where actually understanding the technology helps. Seizing domain names does not shut down the actual website. Thus, if it was really "pretty simple" they would have seized the actual servers, not the domain names.
That they did not do so raises even more questions.
I understand the technology, don't worry about that. I've been using computers for a long time. I agree with you though that if they don't seize the servers too, at least the ones in the U.S. subject to seizure, then that would be kind of weird. As I recall with the seizures back in June, they were seizing the servers. Didn't they seize ninjavideo's (or whatever they were called) servers? I'm not really sure how many of the servers in these recent seizures are in the U.S. though.
And, again, there is no issue if the seizure is for the purpose of protecting evidence from being destroyed.
But you really don't see it as a problem that an entire site full of plenty of legitimate speech is seized with no adversarial trial? Do you really want to support such a position?
These domain names are being used to commit crimes, so I don't have a lot of sympathy for the criminals using them. I do think an adversary hearing up front would be preferable, but I'm not convinced that due process demands it. I imagine we shall soon see.
No offense, but what does and does not sway you is meaningless to most people.
None taken. To each his own. I'm just sharing my opinion like everyone else.
I'm sorry, can I just clarify: You don't believe people should opine on legal issues until after a court has ruled?
Opine, yes. Say it with certainty like there's no other possibility, not so much.
Nice use of "feds" rather than Homeland Security or Immigration and Customs. Homeland Security's job has nothing to do with protecting Disney's business model.
If the FBI wants to investigate, let them investigate, and if there's a real issue, arrest people and hold a trial.
I hope they do arrest some people and hold a trial.
You see, out here in the real world, we understand that no one is a criminal until after they've had their day in court. It scares me that you don't believe this to be the case. What do they teach people in law school these days?
I realize they are only accused of being criminals, and not actually adjudicated to be criminals just yet. Don't be silly. I also realize that alleged criminals get their property seized all the time, and it's perhaps not a bad thing.
If crimes were being committed, were the seizures followed by an equal number of arrests and charges pressed?
It is not necessary that they file actual criminal charges. All they need to do is show by a preponderance of the evidence that the domain names were being used in the furtherance of a crime.
Additionally this is outside the jurisdiction of ICE.
Nope. I don't buy it. The task force set up to enforce the nation's IP laws are very much legit.
One really big problem with your entire argument. Copyright is a civil matter not a criminal one. DHS has no legal authority to intervene matters such as this. Plus you should read ICEs charter this is totally outside what they are allowed to do.
That's a common misconception. Copyright infringement is both a civil and a criminal wrong. See 17 U.S.C. 506, for example. The copyright infringement at play in these seizures is criminal copyright infringement. It's a federal crime that the executive branch is given the authority and the mandate to go after. Your claim that there is no legal authority for them to intervene in these matters is completely without merit.
This smacks of someone saying since we are hyping and lumping counterfeit with infringement in all our press releases, and ICE does counterfeit at our borders, lets get them to confiscate sites we dont like.
They are going after counterfeiters and criminal copyright infringers, as is their job to do.
average_joe, among the websites seized was a torrent search engine. The search engine maintained no links to infringing material. Care to explain? Does this mean Google and Bing should be seized because people could use these search engines to find infringing material? And the "torrents are all infringing" doesn't hold water, because there are legal torrents and p2p applications. Besides, Google's autocomplete usually suggests XYZ torrent when you mention just about any creative visual media work.
These seizures are a thinly veiled attempt to test the waters of what they can get away with, and if we don't push back at every turn eventually we will have no rights left.
You raise a very good point, and I think the simple answer is that search sites like torrent-finder are set up for and dedicated to infringement. I just went there and typed in "Harry Potter" and as far as I can tell, the ONLY results listed are for illicit copies. Contrast that with Google's results which show all the results from the internet, both licit and illicit. Of course Google's search feature can be set so that it only shows torrents of "Harry Potter," but that doesn't change the fact that Google indexes the entire web, while torrent search engines focus on the illicit part of the web. There is some caselaw on point. I'll try to dig that up so we can see how a court has treated the issue.
The domains that were seized were not physical goods. They were domain names. They could not be destroyed or moved or hidden. The evidence of crimes would have been on servers and could have been gathered while the domains were working. In fact, that is exactly how the evidence was gathered in the RIAA file sharing cases as well as the infamous Hurt Locker lawsuits. If a case was to be made, it could have been made just as well if the domains were operational. Shutting down the servers effectively put the owners out of business, and that business can never be fully returned to them by restoring the domain names.
While the domain names may not be "physical goods" that does not mean they aren't "property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement, making it property that is subject to seizure under the statute. The law doesn't say they can only seize tangible property or physical goods. That's a distinction you're making, not one the law makes. The law simply says that they can seize property, period.
Evidence of the crimes was being gathered while the domain names were still "in the wild," so I don't really get your point about that. The point of shutting down the domain names was to shut down property that was being used in the furtherance of a crime. Pretty simple really.
I thought the reason behind property seizure was to insure evidence is not destroyed. Since one can easily save (i.e. make a copy) an entire website as evidence without taking control of it, it seems the purpose of seizure in this case is not relevant.
Preservation of evidence is one reason to seize property. Another reason is prevent that property's continued use in the furtherance of a crime, and that's what I think is happening here.
care to point to this quote about syfert hoping everyone would buy for the purposes of jamming up the court? keep asking for proof on that one, but no one as of yet has come up with it.
Here's what Syfert said: "My dream would be to have 10,000-20,000 people file all three documents to the lawyers and severely cripple the entire process and show them that you shouldn't be allowed to join so many defendants."
While he may have intended "cripple the entire process" to apply to DGW, it necessarily implies that the court would be crippled too. I think that quote is really damning and should have been included in DGW's motion for sanctions.
what if you have a non-dot-com domain like a .ca or a .co.uk? can they seize those just as easily? doesn't this post a potential international issue?
For now, they're only going after addresses like .com since they can issue the warrant to VeriSign which is in the U.S. However, under COICA, they would be able to "get to" addresses that are outside of the U.S. in a roundabout way.
And those guys are arguing that since they only link to infringing material and because they show some things in frames, they are somehow not civilly or criminally liable for the infringement. I think they're wrong on both counts. Apparently the prosecutor who applied for the warrant agrees with me. I hope the website guys challenge the seizure in court so we can see who the judiciary agrees with.
The trouble is the action itself. Even if criminal copyright infringement is taking place on a website pointed to with a particular domain name, which seems far-fetched here, seizure of the name seems inappropriate. For starters, the names were not used in the commission of the crime. They certainly do not provide evidence of the crime. And they were not purchased at all, let alone purchased with the proceeds of the crime.
ICE's best argument is that the names were used to infringe. It has been a long time since I researched it, and I frankly do not remember if a gun that is present at the scene, but never displayed or referred to, is "used in the commission of a crime". Domain names seem to me to be in a similar position - they do not actually further the willful infringement. They do not assist in copying, or even in publishing, a copyrighted work. At most they assist in marketing, and then only if they call out the infringed work - generic names, like "StolenMovies.com" or "torrent-finder.com" do little if any work at all.
I disagree. If criminal acts are being committed on a website, then the domain name is being used to commit those acts. 18 U.S.C. 2323 allows for the seizure of "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement. Certainly the domain name is "property used" to commit the crime. It's not the only property used, but it is property used nonetheless. And should there be a trial, the domain name would certainly be evidence. I don't see how it wouldn't be. I think the idea here is analogous to seizing the speed boat used by the smuggler to bring in cocaine. Sure, the smuggler can get another boat, but he's not using THIS boat.
I think you guys are getting a bit too worked up. He's right: The feds don't warn you before they execute a warrant on you. They investigate, determine if there's probable cause, have a neutral magistrate sign off on it, and then execute the warrant. That's how crime fighting works. And you don't see criminals walking because somehow this process violates due process.
Some vague claim in the blogosphere that it violates due process just doesn't sway me. I'm just not easily moved by such rhetoric. Whether or not this violates the Due Process Clause or the First Amendment is certainly not a foregone conclusion, despite what many people apparently believe. Don't get me wrong, I hope this thing gets going in the courts sooner rather than later so we can actually get some answers about its constitutionality. Until then, it's all just whining, IMO.
As far as the idea that it's somehow wrong for the feds to investigate the claims of the rights holders, that just makes no sense. Since when are the feds not supposed to investigate the crimes complained of by the victims? The idea that they shouldn't investigate is preposterous. Of course they investigate. And who's really surprised that once they did investigate they found enough evidence of crime to get a warrant? Good grief. It's like you guys don't get which side is the criminals, and which side is the victims. Cracks me up.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
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On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
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This worries me tremendously.
Technically, the forfeiture proceeding is a civil proceeding so there's no "innocent" or "guilty." The burden is on the government to prove by a preponderance of the evidence that the domain names should remain seized.
On the post: If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?
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I think all we know is that the prosecutor presented probable cause to a judge and the judge signed the warrant. Exactly what proof their investigation uncovered is anyone's guess.
I was under the impression (from what little I know of Viacom v. Youtube) that knowing there is infringing material in the meta sense (e.g., Youtube almost definitely has infringing material on it right now, but I'm not sure what) is not enough to lose your safe harbors. I thought it was determined that the service provider needed to know about specific instances of infringement and do nothing to lose those safe harbors. Further, if this site did adhere to DMCA takedown requests (the only *real* and legally binding way to know if something you host is infringing) then it stands to reason that they still have their safe harbors, and are therefore, as the poster you replied to said, 100% legal.
Am I incorrect in my logic and/or understanding of these things?
I think the argument simply is that the sites were being used to commit criminal copyright infringement, and the safe harbors do not protect criminals.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
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You show up to the hearing and show by a preponderance of the evidence that the domain names were NOT being used in the furtherance of a crime.
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If that is true - where are the arrests in these cases concerning these seized domains?
They can seize the property whether or not criminal charges are ever filed.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: I have to disagree..
We could get into a debate on the theory, but the bottom line is really that the law says it's property that can be seized, and so it is property that really gets seized.
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But they index that particular file type for the purpose of making copyright infringement easier. That's why those sites exist. That's why people use those sites. That's pretty much the only reason why people use those sites. We all know it.
Google on the other hand is used for so much more. It's ability to be used to locate illicit material is incidental.
And the maker of Harry Potter didn't release any torrents that I'm aware of. That's why I said I thought all of the results there were illicit.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
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That they did not do so raises even more questions.
I understand the technology, don't worry about that. I've been using computers for a long time. I agree with you though that if they don't seize the servers too, at least the ones in the U.S. subject to seizure, then that would be kind of weird. As I recall with the seizures back in June, they were seizing the servers. Didn't they seize ninjavideo's (or whatever they were called) servers? I'm not really sure how many of the servers in these recent seizures are in the U.S. though.
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But you really don't see it as a problem that an entire site full of plenty of legitimate speech is seized with no adversarial trial? Do you really want to support such a position?
These domain names are being used to commit crimes, so I don't have a lot of sympathy for the criminals using them. I do think an adversary hearing up front would be preferable, but I'm not convinced that due process demands it. I imagine we shall soon see.
No offense, but what does and does not sway you is meaningless to most people.
None taken. To each his own. I'm just sharing my opinion like everyone else.
I'm sorry, can I just clarify: You don't believe people should opine on legal issues until after a court has ruled?
Opine, yes. Say it with certainty like there's no other possibility, not so much.
Nice use of "feds" rather than Homeland Security or Immigration and Customs. Homeland Security's job has nothing to do with protecting Disney's business model.
If the FBI wants to investigate, let them investigate, and if there's a real issue, arrest people and hold a trial.
I hope they do arrest some people and hold a trial.
You see, out here in the real world, we understand that no one is a criminal until after they've had their day in court. It scares me that you don't believe this to be the case. What do they teach people in law school these days?
I realize they are only accused of being criminals, and not actually adjudicated to be criminals just yet. Don't be silly. I also realize that alleged criminals get their property seized all the time, and it's perhaps not a bad thing.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
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It is not necessary that they file actual criminal charges. All they need to do is show by a preponderance of the evidence that the domain names were being used in the furtherance of a crime.
Additionally this is outside the jurisdiction of ICE.
Nope. I don't buy it. The task force set up to enforce the nation's IP laws are very much legit.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
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That's a common misconception. Copyright infringement is both a civil and a criminal wrong. See 17 U.S.C. 506, for example. The copyright infringement at play in these seizures is criminal copyright infringement. It's a federal crime that the executive branch is given the authority and the mandate to go after. Your claim that there is no legal authority for them to intervene in these matters is completely without merit.
This smacks of someone saying since we are hyping and lumping counterfeit with infringement in all our press releases, and ICE does counterfeit at our borders, lets get them to confiscate sites we dont like.
They are going after counterfeiters and criminal copyright infringers, as is their job to do.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
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These seizures are a thinly veiled attempt to test the waters of what they can get away with, and if we don't push back at every turn eventually we will have no rights left.
You raise a very good point, and I think the simple answer is that search sites like torrent-finder are set up for and dedicated to infringement. I just went there and typed in "Harry Potter" and as far as I can tell, the ONLY results listed are for illicit copies. Contrast that with Google's results which show all the results from the internet, both licit and illicit. Of course Google's search feature can be set so that it only shows torrents of "Harry Potter," but that doesn't change the fact that Google indexes the entire web, while torrent search engines focus on the illicit part of the web. There is some caselaw on point. I'll try to dig that up so we can see how a court has treated the issue.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Not physical goods
While the domain names may not be "physical goods" that does not mean they aren't "property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement, making it property that is subject to seizure under the statute. The law doesn't say they can only seize tangible property or physical goods. That's a distinction you're making, not one the law makes. The law simply says that they can seize property, period.
Evidence of the crimes was being gathered while the domain names were still "in the wild," so I don't really get your point about that. The point of shutting down the domain names was to shut down property that was being used in the furtherance of a crime. Pretty simple really.
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Preservation of evidence is one reason to seize property. Another reason is prevent that property's continued use in the furtherance of a crime, and that's what I think is happening here.
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Sure. The quote was from torrentfreak originally, and then Mike picked it up in his earlier article on Syfert: http://www.techdirt.com/articles/20100829/23330210812.shtml
Here's what Syfert said: "My dream would be to have 10,000-20,000 people file all three documents to the lawyers and severely cripple the entire process and show them that you shouldn't be allowed to join so many defendants."
While he may have intended "cripple the entire process" to apply to DGW, it necessarily implies that the court would be crippled too. I think that quote is really damning and should have been included in DGW's motion for sanctions.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: international
For now, they're only going after addresses like .com since they can issue the warrant to VeriSign which is in the U.S. However, under COICA, they would be able to "get to" addresses that are outside of the U.S. in a roundabout way.
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And those guys are arguing that since they only link to infringing material and because they show some things in frames, they are somehow not civilly or criminally liable for the infringement. I think they're wrong on both counts. Apparently the prosecutor who applied for the warrant agrees with me. I hope the website guys challenge the seizure in court so we can see who the judiciary agrees with.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Re: Dur process is not the problem
ICE's best argument is that the names were used to infringe. It has been a long time since I researched it, and I frankly do not remember if a gun that is present at the scene, but never displayed or referred to, is "used in the commission of a crime". Domain names seem to me to be in a similar position - they do not actually further the willful infringement. They do not assist in copying, or even in publishing, a copyrighted work. At most they assist in marketing, and then only if they call out the infringed work - generic names, like "StolenMovies.com" or "torrent-finder.com" do little if any work at all.
I disagree. If criminal acts are being committed on a website, then the domain name is being used to commit those acts. 18 U.S.C. 2323 allows for the seizure of "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement. Certainly the domain name is "property used" to commit the crime. It's not the only property used, but it is property used nonetheless. And should there be a trial, the domain name would certainly be evidence. I don't see how it wouldn't be. I think the idea here is analogous to seizing the speed boat used by the smuggler to bring in cocaine. Sure, the smuggler can get another boat, but he's not using THIS boat.
On the post: Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry
Some vague claim in the blogosphere that it violates due process just doesn't sway me. I'm just not easily moved by such rhetoric. Whether or not this violates the Due Process Clause or the First Amendment is certainly not a foregone conclusion, despite what many people apparently believe. Don't get me wrong, I hope this thing gets going in the courts sooner rather than later so we can actually get some answers about its constitutionality. Until then, it's all just whining, IMO.
As far as the idea that it's somehow wrong for the feds to investigate the claims of the rights holders, that just makes no sense. Since when are the feds not supposed to investigate the crimes complained of by the victims? The idea that they shouldn't investigate is preposterous. Of course they investigate. And who's really surprised that once they did investigate they found enough evidence of crime to get a warrant? Good grief. It's like you guys don't get which side is the criminals, and which side is the victims. Cracks me up.
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