Can you please elaborate? I was under the impression that section 230 of the DMCA said that if you complied with takedown notices then you were not punished for the actions of your users.
You're mixing up a couple of different things.
Section 230 of the Communications Decency Act ("CDA"), 47 U.S.C. 230, gives providers of interactive computer services safe harbor from liability for the posts of their users. For example, if I post something defamatory on techdirt, techdirt can't be held liable for my defamation. Section 230 specifically does not apply to intellectual property laws, nor does it apply to criminal liability. In short, it doesn't apply here.
Section 512 of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. 512, provides safe harbor to online service providers from liability for the copyright infringement of their users, but only if the providers follow certain procedures. For example, if I post copyrighted material on techdirt, techdirt can't be held liable if it follows the procedures.
However, DMCA safe harbors do not shield those operators who themselves take part in or have knowledge of the infringement. You can't just set a website with a proper DMCA agent, use it to commit or help to commit criminal copyright infringement, and then claim that your compliance with the DMCA shields you from liability. It simply doesn't work that way. You lose your eligibility for the safe harbor, you are not shielded from liability, and your domain name is subject to seizure.
So, where are the trials for the June domain name seizures?
I've been thinking about this one, and I think the answer is that under the law as it stands now, there is nothing that says the feds have to immediately inform the domain name owner of the seizure, nor must they at the same time give them a hearing on the issue. In other words, the government can stall things.
But, under COICA I believe there is a requirement of simultaneous notification to the domain name owner of the seizure with a window of opportunity for them to respond. In other words, COICA gives more protection to the domain name owners, in this respect anyhow, than they get under the current law.
And you guys were complaining that COICA was all bad. Sheesh. :)
According to the site owners, they've always taken down such content if they receive a DMCA notice. If that's true, then they're obeying the law 100%.
That makes no sense. You can comply with takedown notices yet still be guilty of criminal copyright infringement. The one's got nothing to do with the other.
I love this Syfert guy: "In short, if you're not going to hire me, take a flying fuck and leave me alone about the forms--both of you. . . . Hire me or eat shit" LOL! That guy's awesome. I'm surprised DGW didn't bring up Syfert's quote that was picked up by the "press" about how he hoped everyone would buy and use these forms so they could jam up the court. I thought that statement was particularly egregious coming from an officer of the court. The very thought of it made me cringe. I can't imagine why DGW didn't use it.
I remember warning people that these forms were potentially a bad idea since DGW would likely retaliate against those using them. Apparently, DGW told Syfert that they were going to ask for double the settlement from anyone who used the forms. Who knows if they really did that, but obviously I was right that DGW intended to punish those using the forms. At the time, I predicted that when DGW gets to deciding which defendants to actually name and sue, I bet those that used these forms would be moved to the top of the list. I wouldn't be surprised if that really happens.
I also said the forms were "losers" and, IMO, this turned out to be true. The motions to quash and motions for protective orders were being denied by the judge en masse, as quickly as they were filed. DGW is right in the sense that these forms did nothing more than muck up the court's docket with unnecessary, crappy motions that had no chance of being granted.
I know some are arguing that the motions to dismiss were successful, but I don't really see it that way. The fact is, DGW had until sometime in November to replace the Doe defendants in the complaint with a named defendant. This deadline is set by the rules of civil procedure. DGW tried to get the deadline extended again, but the judge wasn't buying it. I don't think the motions to dismiss had anything to do with the judge's decision. As far as I know, the judge never ruled on the motions to dismiss. I haven't checked the docket in a while, but I think the judge just shelved the motions while waiting for the clock to run out of time so they would become moot.
It will be interesting to see how the judge rules on DGW's motion for sanctions. Syfert did thrust himself into the fight by creating and marketing the forms for the defendants in these USCG cases. But I think Syfert's right and the court doesn't have jurisdiction over him since he's not a party to the proceeding.
And, in answer to your "it happens all the time" quote, you're wrong. *Physical* property does get seized, but the rules are that it's only supposed to be if it's evidence that might get destroyed. Going beyond that (as does happen) is not what the law allows.
I don't think that's accurate. 18 U.S.C. 2323, which was amended a couple of years ago with the PRO IP Act, allows for civil forfeiture of "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" a list of offenses, include criminal copyright infringement. Nowhere does the statute require that the property seized be "evidence that might get destroyed." I think it's true that traditionally it was such property that was forfeited, but I don't think you could call it a "rule" by any means.
Yes, I know. But the word "willful" is actually in the law. The NET Act merely re-defined "commercial" to include "the expectation of private gain" - so trading software is also "commercial." It also set minimum dollar amounts to be considered "criminal" infringement (which are ridiculously low).
However, all of that applies to direct infringement. I've never seen a single case in copyright history where a contributory infringer was charged with criminal infringement. Even Napster, Limewire, and Grokster weren't charged with a crime, and those sites are much more "devoted to infringement" than any of the sites taken down this weekend.
I think maybe you're thinking in terms of civil liability, where with these seizures the issue is criminal liability.
In criminal law, there is accomplice liability, conspirator liability, aiding and abetting, hindering prosecution, etc. I think you need to look at their activities through a criminal law lens.
I've never really researched the issue, and I'm too busy now to do so, but I'd be really surprised if liability for criminal copyright infringement only applied to direct infringers.
They were already ruled as being analogous in CDT v. Pappert, which used the Fort Wayne Books ruling as case law.
And the Pappert case was about child pornography, a much more serious problem (and much less protected form of speech) than copyright infringement.
I don't really think Pappert does much work for us here, since in that case the problem was the lack of adversary proceedings. Not to mention they took down over a million websites in an effort to block less than 400 sites accused of having kiddie porn.
As a side note, why were DCMA notices filed for the material before it went to this point? Isn't that where you start with infringement?
DMCA notices are used by the rights holders in a civil context, whereas these seizures were done by the government in a criminal context. Two different things altogether.
Justice Alito shut down Attorney Kiwi Camara's fabricated circuit split: "Although there are now no conflicting Circuit decisions, I would grant review in this case because not many cases presenting this issue are likely to reach the Courts of Appeals." Cracked me up. There is no circuit split.
Criminal infringement must be "willful" and commercial.
That is simply not so. The Net Act criminalized non-commercial copyright infringement. Also, keep in mind that these sites are being seized for trademark infringement and/or copyright infringement.
So, a whole slew of Federal agencies are spending manpower and resources on people who may be tort defendants, but are not criminals.
No offense, but I'll take a federal prosecutor's and a federal judge's determination that there is probable cause that the sites were involved in criminal acts over your theory that they weren't.
We discussed this above, but seizing any materials even potentially protected by the First Amendment, prior to an adversarial hearing, is unconstitutional prior restraint. Whether that seizure is "temporary" or not.
And yet preliminary injunctions are issued in infringement cases with regularity.
Obscenity isn't protected speech either, yet that's exactly what the case was about.
I get the argument, but I'm just not sure a domain name being seized under copyright and trademark law is analogous to a bookstore being seized under anti-obscenity laws. Of course you can argue that it is, but I think it's debatable, and I'm not aware of any caselaw on point.
I love it too. I actually think it has teeth and it's not going away anytime soon. US Copyright Group shouldn't be sending out settlement letters threatening statutory damages if statutory damages aren't on the table. Shame on them. They deserve this one.
That's certainly a good argument, but I think the simple answer is that copyright infringement isn't protected speech so there isn't prior restraint. I don't have time to read through the case you linked to see what's going on there. Maybe later...
Since we thought the US believed in due process, how does seizing domain names, prior to any adversarial trial, fit with the concept of innocent until proven guilty? And, yes, I'm well aware of the right to seize property as part of an investigation, but when dealing with websites, we are talking about a form of speech that has a much higher burden before it can be stopped -- so I'm curious for the government mandate on seizing domain names prior to a trial?
As far as domain name seizures violating due process goes, I think perhaps a good argument is that in personam jurisdiction isn't exhausted before they go straight to in rem jurisdiction. In rem is simpler, so it's not surprising they want to start there, but I have to wonder if that's not a due process violation. Even under the ACPA, an in rem action is not available until the court finds that it is not able to obtain in personam jurisdiction. To me that makes sense--only after going after the individual has proven impossible should you be able to go after the domain name. That would be more fair, IMO.
Even if everything were above-board and there was ample evidence of criminal infringement... why is ICE and DHS involved?? What does this have to do with immigration or security? I just don't get it, if this were really legitimate (which I doubt) it should be done by the Federal BI.
According to the website, it's a coordinated effort by:
* U.S. Immigration and Customs Enforcement
* U.S. Customs and Border Protection
* Federal Bureau of Investigation
* Food and Drug Administration, Office of Criminal Investigations
* U.S. Postal Inspection Service
* Department of Commerce, International Trade Administration
* U.S. Patent and Trademark Office
* Naval Criminal Investigative Service
* Defense Criminal Investigative Service
* U.S. Army Criminal Investigative Command, Major Procurement Fraud Unit
* General Services Administration, Office of Inspector General
* Consumer Product Safety Commission
* INTERPOL
* Government of Mexico Tax Administration Service
Considering that these are federal crimes occurring interstate and internationally, I'm not surprised at who the players are.
On the post: If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?
Re: Re: Re: Re:
You're mixing up a couple of different things.
Section 230 of the Communications Decency Act ("CDA"), 47 U.S.C. 230, gives providers of interactive computer services safe harbor from liability for the posts of their users. For example, if I post something defamatory on techdirt, techdirt can't be held liable for my defamation. Section 230 specifically does not apply to intellectual property laws, nor does it apply to criminal liability. In short, it doesn't apply here.
Section 512 of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. 512, provides safe harbor to online service providers from liability for the copyright infringement of their users, but only if the providers follow certain procedures. For example, if I post copyrighted material on techdirt, techdirt can't be held liable if it follows the procedures.
However, DMCA safe harbors do not shield those operators who themselves take part in or have knowledge of the infringement. You can't just set a website with a proper DMCA agent, use it to commit or help to commit criminal copyright infringement, and then claim that your compliance with the DMCA shields you from liability. It simply doesn't work that way. You lose your eligibility for the safe harbor, you are not shielded from liability, and your domain name is subject to seizure.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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I've been thinking about this one, and I think the answer is that under the law as it stands now, there is nothing that says the feds have to immediately inform the domain name owner of the seizure, nor must they at the same time give them a hearing on the issue. In other words, the government can stall things.
But, under COICA I believe there is a requirement of simultaneous notification to the domain name owner of the seizure with a window of opportunity for them to respond. In other words, COICA gives more protection to the domain name owners, in this respect anyhow, than they get under the current law.
And you guys were complaining that COICA was all bad. Sheesh. :)
On the post: If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?
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That makes no sense. You can comply with takedown notices yet still be guilty of criminal copyright infringement. The one's got nothing to do with the other.
On the post: Hurt Locker Producers Demand Sanctions Against Lawyer Offering DIY Legal Kits
I remember warning people that these forms were potentially a bad idea since DGW would likely retaliate against those using them. Apparently, DGW told Syfert that they were going to ask for double the settlement from anyone who used the forms. Who knows if they really did that, but obviously I was right that DGW intended to punish those using the forms. At the time, I predicted that when DGW gets to deciding which defendants to actually name and sue, I bet those that used these forms would be moved to the top of the list. I wouldn't be surprised if that really happens.
I also said the forms were "losers" and, IMO, this turned out to be true. The motions to quash and motions for protective orders were being denied by the judge en masse, as quickly as they were filed. DGW is right in the sense that these forms did nothing more than muck up the court's docket with unnecessary, crappy motions that had no chance of being granted.
I know some are arguing that the motions to dismiss were successful, but I don't really see it that way. The fact is, DGW had until sometime in November to replace the Doe defendants in the complaint with a named defendant. This deadline is set by the rules of civil procedure. DGW tried to get the deadline extended again, but the judge wasn't buying it. I don't think the motions to dismiss had anything to do with the judge's decision. As far as I know, the judge never ruled on the motions to dismiss. I haven't checked the docket in a while, but I think the judge just shelved the motions while waiting for the clock to run out of time so they would become moot.
It will be interesting to see how the judge rules on DGW's motion for sanctions. Syfert did thrust himself into the fight by creating and marketing the forms for the defendants in these USCG cases. But I think Syfert's right and the court doesn't have jurisdiction over him since he's not a party to the proceeding.
On the post: If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?
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I don't think that's accurate. 18 U.S.C. 2323, which was amended a couple of years ago with the PRO IP Act, allows for civil forfeiture of "any property used, or intended to be used, in any manner or part to commit or facilitate the commission of" a list of offenses, include criminal copyright infringement. Nowhere does the statute require that the property seized be "evidence that might get destroyed." I think it's true that traditionally it was such property that was forfeited, but I don't think you could call it a "rule" by any means.
On the post: If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?
Re: Murky waters
I did read somewhere that the feds asked companies which websites were the worst offenders, and then they investigated the sites complained of.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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However, all of that applies to direct infringement. I've never seen a single case in copyright history where a contributory infringer was charged with criminal infringement. Even Napster, Limewire, and Grokster weren't charged with a crime, and those sites are much more "devoted to infringement" than any of the sites taken down this weekend.
How do you figure that the criminal copyright laws only applies to direct infringement? 17 U.S.C. 506 doesn't say that: http://www.copyright.gov/title17/92chap5.html#506
I think maybe you're thinking in terms of civil liability, where with these seizures the issue is criminal liability.
In criminal law, there is accomplice liability, conspirator liability, aiding and abetting, hindering prosecution, etc. I think you need to look at their activities through a criminal law lens.
I've never really researched the issue, and I'm too busy now to do so, but I'd be really surprised if liability for criminal copyright infringement only applied to direct infringers.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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That's a great question.
The seizure warrant from 7 of the domain names seized in June is here: http://www.courthousenews.com/2010/06/30/Warrant.pdf
United States v. TVShack.net et al., S.D.N.Y., No. 10 MAG 1421
I couldn't find anything on Westlaw, Lexis, or PACER. It could be sealed, or else maybe I'm just not using the right search terms. I dunno.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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And the Pappert case was about child pornography, a much more serious problem (and much less protected form of speech) than copyright infringement.
I don't really think Pappert does much work for us here, since in that case the problem was the lack of adversary proceedings. Not to mention they took down over a million websites in an effort to block less than 400 sites accused of having kiddie porn.
By the way, Karl, I read this paper last night when I was up with the little one, and I thought you'd enjoy it: http://www.law.ucla.edu/volokh/copyinj.htm
Title is "FREEDOM OF SPEECH AND INJUNCTIONS IN INTELLECTUAL PROPERTY CASES"
It argues that there shouldn't be injunctions in IP cases. Professors Lemley and Volokh always make for a good read.
On the post: US Copyright Group Sued For Extortion, Conspiracy & Fraud
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Nope. I like fair play as much as the next person.
On the post: Five Questions For Homeland Security Concerning Its Online Censorship Campaign
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DMCA notices are used by the rights holders in a civil context, whereas these seizures were done by the government in a criminal context. Two different things altogether.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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On the post: Supreme Court Won't Hear Innocent Infringer Case, Though Alito Thinks It Should
Alito's dissent in full is here: http://www.supremecourt.gov/orders/courtorders/112910zor.pdf
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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That is simply not so. The Net Act criminalized non-commercial copyright infringement. Also, keep in mind that these sites are being seized for trademark infringement and/or copyright infringement.
So, a whole slew of Federal agencies are spending manpower and resources on people who may be tort defendants, but are not criminals.
No offense, but I'll take a federal prosecutor's and a federal judge's determination that there is probable cause that the sites were involved in criminal acts over your theory that they weren't.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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And yet preliminary injunctions are issued in infringement cases with regularity.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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I get the argument, but I'm just not sure a domain name being seized under copyright and trademark law is analogous to a bookstore being seized under anti-obscenity laws. Of course you can argue that it is, but I think it's debatable, and I'm not aware of any caselaw on point.
On the post: US Copyright Group Sued For Extortion, Conspiracy & Fraud
Re:
Hell yes it's RICO.
I love it too. I actually think it has teeth and it's not going away anytime soon. US Copyright Group shouldn't be sending out settlement letters threatening statutory damages if statutory damages aren't on the table. Shame on them. They deserve this one.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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On the post: Five Questions For Homeland Security Concerning Its Online Censorship Campaign
As far as domain name seizures violating due process goes, I think perhaps a good argument is that in personam jurisdiction isn't exhausted before they go straight to in rem jurisdiction. In rem is simpler, so it's not surprising they want to start there, but I have to wonder if that's not a due process violation. Even under the ACPA, an in rem action is not available until the court finds that it is not able to obtain in personam jurisdiction. To me that makes sense--only after going after the individual has proven impossible should you be able to go after the domain name. That would be more fair, IMO.
On the post: Who Needs COICA When Homeland Security Gets To Seize Domain Names?
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It's the National Intellectual Property Rights Coordination Center (IPR Center): http://www.ice.gov/iprcenter/
According to the website, it's a coordinated effort by:
* U.S. Immigration and Customs Enforcement
* U.S. Customs and Border Protection
* Federal Bureau of Investigation
* Food and Drug Administration, Office of Criminal Investigations
* U.S. Postal Inspection Service
* Department of Commerce, International Trade Administration
* U.S. Patent and Trademark Office
* Naval Criminal Investigative Service
* Defense Criminal Investigative Service
* U.S. Army Criminal Investigative Command, Major Procurement Fraud Unit
* General Services Administration, Office of Inspector General
* Consumer Product Safety Commission
* INTERPOL
* Government of Mexico Tax Administration Service
Considering that these are federal crimes occurring interstate and internationally, I'm not surprised at who the players are.
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