If you read the stories and comments here, you would think that piracy is a very minor problem, a small amount of torrent traffic.
Reading fail, no one has argued piracy represents a small amount of internet traffic.
No, they have the intent to profit from people who have already broken the law and need legal help. They are no shipping out cases of beer or giving away free beer bongs to get people drunk. Analogy fail.
So what about the sites that the labels sent promotional material to?
Another analogy fail. The underlying product isn't illegal in and of itself. Gun dealers don't sell guns to minors, which would be illegal. See how it works? If you know things are illegal, you shouldn't be involved.
Music blogs are illegal? Torrents are illegal? .torrent = .crime rears its head again.
2 comments in, amazing! I applaud your speed. Evidently there must be more to this story, with Mike doing some good ol' bootstrapping. We should check what some judges and politicians said about DMB, they always know best.
I personally think DMB is missing out most in their merchandising - I mean, how many t-shirts do they sell? Do they even push their t-shirts much? As Techdirt always says, cotton beats plastic any day.
I already patented the idea, you now owe me money for obviously stealing it. If you argue, you will be fined a further $3,000.000 for doubting the infallibility of the court.
What I wrote means that those who deny the existence of intellectual property deny society’s right to create intellectual property rights by law. If you think that is “straw” so be it.
This make so sense to me at all. We deny the term intellectual property and its ability to accurately describe something far more nuanced and unlike physical property than some would like to admit, we do not deny the ability for laws like copyright to be created. Your argument conflates the denial of an inaccurate term with the denial of the existence or the ability to create the law itself.
It should be noted that nowhere in the creation of copyright was it recognised as anything like property, your argument is disingenuous in not recognising history and only presenting what you assume to be the correct view, based on seemingly self assurance.
You do realise the same judgement was made of Veoh right, the case the was cited here? Technically speaking, that ruling just reaffirmed that standard, and now so has the Youtube case. You're delusional if you think the Youtube case should be overturned.
Reverted to your old ways I see Joe. For a while I thought you may actually have been interested in honest discussion. But alas, you cannot think of another way to equate a site with a registered DMCA agent and tried to work with the MPAA as being run by a veritable king of pirates, let alone developed means to filter certain materials but were unable to.
One last sginificant (and lengthy) quote from the IsoHunt appeal:
The District Court further held: “the Court’s injunction is limited to Plaintiffs’ copyrights and will not substantially interfere with any claimed non-infringing aspects of Defendants’ system.” (ER0015:17-19.)By the time Defendants filed their Application for a Stay of Enforcement in the District Court on May 27, 2010, Plaintiffs had served their first list of over 23,000 titles that included “10,” “21,” “Birth,” “Cars,” Dad,” “Dave,” “Soldier” and “Sunshine.” Huge quantities of public domain and other non-infringing materials were being impacted. (ER0109:22-113:25.) Defendants requested court approval of their “lite” site for US visitors. (ER0113:26-114:17, ER0116:6-9.) On June 11, 2010, the District Court denied Defendants’ Request for a Stay but modified the Permanent Injunction to require Plaintiffs’ to provide more information in the “lists of titles.” (ER0005:13-6:21.) As to the two branches of Defendants’ operations (“lite” and “main”), the District Court stated:
The Court is not presently in a position to decide whether or not Defendants’ suggestion would fully comply with the Injunction, but if it would, then Defendants are free to use this approach. (ER0005:24-28.)
On August 2, 2010, Plaintiffs filed a Motion for Contempt, asserting that the Canadian-access “main” site had completely failed to comply with the Injunction and that the filter on the US-access “lite” site was a sham. (ER0096:10-27.) In opposition, Fung declared he was following the District Court’s suggestion that he was “free to use [his] approach” on the lite/main branching. (ER0084:7-16.) Defendants’ employees had spent some 460 hours trying to comply with the District Court’s Injunction. (ER0083:26-84:6.) Over 840,000 torrents were being blocked and Plaintiffs were complaining about torrents where their own “list of titles” was defective. “We have spent many hours tracking down and correcting ... errors and discrepancies in Plaintiffs’ ‘list of titles.’ ” (ER0086:19-90:19.) It was clear that many authorized works and public domain works were being blocked. (ER0089:14-15.)
[...]
B. Free Speech Principles Prohibit Imposing Liability on the Basis of Scattered “Messages” That Have No Demonstrated Relationship to Any Actual Infringement.
As set forth supra in Facts B.2, the District Court quoted statements made by Fung personally and through an automated process or “bot” during isoHunt’s early days as an IRC search engine. The statements had no actual connection with copyright infringement but were sarcastic. The bot statement was solely directed at RIAA copyright enforcers. A TV interviewer asked Fung “So everyone wants to try The Da Vinci Code [movie] for free, right?” Fung responded: “Apparently, yes.” (ER0491:2-7.) The District Court interpreted the exchange: “Fung also stated users were attracted to his website by ... The Da Vinci Code.” (ER0040:20-22.) In another interview, Fung said:
“to me, copyright infringement when it occurs may not necessarily be stealing.” (ER0055:16-56:2.)
All the foregoing statements were emphasized by the District Court and cited as evidence that Fung intended to induce copyright infringement through BitTorrent. (ER0040:9-22, ER055:22-56:6.) The District Court’s rulings were erroneous. “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.” R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 391, 112 S.Ct. 2538 (1992). There is no evidence that any of the foregoing statements “induced” anyone to commit copyright infringement. All the statements were uttered in situations that were separate and distinct from the torrent sites and trackers that are alleged material aids to infringement. Fung did not urge anyone to violate the law or to engage in copyright infringement. His statements were well within the limits of Constitutionally-protected speech. Humanitarian Law Project v. Holder, 130 S.Ct. 2705, 2724-2727 (2010) (Congressionally-authorized prohibition of provision of “material support” did not violate Free Speech rights); Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253; 122 S.Ct. 1389 (2002); Bartnicki v. Vopper, 532 U.S. 514, 529, 121 S. Ct. 1753 (2001); see also Entertainment Software Association v. Blagojevich, 469 F.3d 641 (7th Cir. Ill. 2006). The District Court’s rulings have a chilling effect on the exercise of First Amendment rights by third-party Internet developers and Defendants are proper parties to bring their concerns before the Court. Broadrick v. Oklahoma, 413 U.S. 601, 611-615, 93 S. Ct. 2908 (1973). The rulings tell Internet developers that criticism of copyright enforcement or advocacy concerning copyright disputes may be treated as inculpatory should copyright litigation ever be filed. The District Court refused to consider First Amendment limits to evidence, holding that “the present case involves conduct not expression.” (ER0060:25-26, emphasis in original.) The District Court erred. In Humanitarian Law Project, supra, 130 S.Ct. at 2724, the Supreme Court held: “the conduct triggering coverage under the statute consists of communicating a message.” Therefore, the Court required “more rigorous scrutiny” of the messages and a higher level of Constitutional protection. Id. The same principle applies here. The District Court erroneously inculpated Defendants on the basis of anonymous or non-anonymous forum messages. In re Anonymous Online Speakers, 611 F.3d 653 (9th Cir. 2010). Messages quoted supra and in the Summary Judgment Order were all improperly considered as evidence in this case. This Court should reverse. The new authorities decided since the Summary Judgment Order will require detailed consideration of Defendants’ other messages in subsequent proceedings.
The District Court Erred In Dismissing Defendants’ DMCA Defenses.
[...]
B. The District Court Erroneously Refused to Consider Defendants’ DMCA Defenses and Erroneously Decided Genuine Issues of Fact.
Defendants alleged affirmative defenses under the DMCA. (ER0339:4-13.) Defendants sought a “safe harbor” pursuant to 17 U.S.C. § 512(a) for trackers (providing routing or connections through automatic technical processes) and, for torrent sites, 17 U.S.C. § 512(c) (information residing on networks at direction of users) and/or 17 U.S.C. § 512(d) (information location tools). Defendants asserted the defenses during oral argument. (ER0191:9-193:11.) As set forth supra, Facts B.5, Defendants maintain a robust DMCA policy and practice. The District Court rejected Defendants’ claims under §§ 512(a) and (c) “[b]ecause infringing materials do not pass through or reside on Defendants’ system.” (ER0066:22-23.) The District Court erred. As this Court said in CCBill at 488 F.3d at 1116:
We reject Perfect 10's argument that CCBill is not eligible for immunity under § 512(a) because it does not itself transmit the infringing material. ... There is no requirement in the statute that the communications must themselves be infringing, and we see no reason to import such a requirement. It would be perverse to hold a service provider immune for transmitting information that was infringing on its face, but find it contributorily liable for transmitting information that did not infringe.
The District Court further ruled:
“Plaintiffs’ claims are premised on active inducement of infringement, not passive transmission or storage of infringing materials.” (ER0066:27-28.)
The District Court erred. Grokster never suggested an exception to an Act of Congress. There is nothing in the DMCA that supports such a distinction. The District Court stated:
Further, Defendants have not introduced any evidence that they “act[ed] expeditiously to remove, or disable access to, the [infringing ] material” once they became aware that this infringing
activity was apparent. (See generally Defs.’ SGI ¶¶ eee-lll.) (ER0067:3-6, as in original.)
The District Court is in error. The evidence cited by the District Court shows that Defendants acted expeditiously to remove and/or disable access to materials when notified pursuant to the DMCA. See Facts B.5 and ER0471-474.
[T]he DMCA ... grants a safe harbor against liability to certain Internet service providers, even those with actual knowledge of infringement, if they have not received statutorily-compliant notice. (Visa at 494 F.3d 795, n.4., citing CCBill.) See also UMG Recordings, Inc. v. Veoh Networks Inc., 665 F.Supp.2d 1099 (C.D.Cal., 2009); Viacom Intern. Inc. v. YouTube, Inc., 718 F.Supp.2d 514, (S.D.N.Y. 2010). The District Court itself noted that “there appears to be a triable issue of fact as to the adequacy of the statutory notice that Plaintiff provided to Defendants.” (ER0067:25-27.)
The District Court ruled that “red flags” deprived Defendants of DMCA defenses as a matter of law. (ER0068:7-71:11.) In so ruling, the District Court relied on the “90% to 95%” evidence discussed in Facts A.2.d and C.2. But the District Court also ruled that “it simply does not matter whether” the correct figure is “75% (to pick a number).” (ER0039:18-27, ER0069:6, 26). Using a standard of “willful ignorance” (ER0068:7) and the 90% to 95% figure, the District Court concluded: “Fung was aware that infringing material was available on Defendant websites” and Defendants were “willfully ignorant of ongoing copyright infringement.” (ER0068:14-15, ER0069:11.) The District Court erred. Any such knowledge was purely constructive and purely constructive knowledge is insufficient under the DMCA unless DMCA notice is given. CCBill, quoted supra. The District Court erred when it ignored Defendants’ actual DMCA policy and practice. Id. See also Viacom v. YouTube, supra. The District Court erred in a summary judgment proceeding when it disregarded all of Defendants’ evidence about their operations and intentions and adopted the narrow view presented by Plaintiffs that was limited to selected items arranged to support certain inferences. Finally, the District Court stated “one last reason” to dismiss Defendants’ DMCA defenses, citing rules governing “repeat infringers.” (ER0070:20-ER0071:11.) However, Plaintiffs stated that they “have not asserted that defendants are disqualified from any DMCA safe harbor by reason of defendants’ failure to adopt and implement a policy of repeat infringers.” (ER0471:23-472:4.)
Nonsense. Dot-torrent files have only one purpose--to download the full torrent. The court wasn't tricked by that argument. Believe it or not, federal judges are a rather bright bunch.
From the IsoHunt appeal:
Torrent sites share resources and operate together in a collective fashion. Special purpose torrent sites need general aggregators like isoHunt to spread torrents through the BitTorrent ecosystem. isoHunt collects torrents from 225 torrent sites. Fung watches spiders from Google and numerous torrent sites and other search engines as they index Defendants’ sites. (ER0488:12-24) Trackers also operate collectively and redundantly. A dot-torrent file often identifies multiple trackers that serve as backup and parallel channels. isoHunt collects data from 1939 online trackers. No single tracker could handle more than a tiny share of the combined load. (ER0487:7-14.) Like other BitTorrent developers, Defendants build their systems from generic software, typically available as free open-source code. Fung’s innovations keep his systems among the most competitive in the market but all essential BitTorrent operations are realized by means of straightforward combinations of generic components. (ER0488:25-489:10.)
One chief reason stated by the District Court for imposing liability is that:
“dot-torrent files downloaded from Defendants’ sites correspond to and automatically cause the downloading of Plaintiffs’ copyrighted content. (ER0049:10-12, 22-28; see also ER0036:7-18, ER0060:3-11.)
The District Court stated:
Because dot-torrent files automatically trigger this content-downloading process, it is clear that dot-torrent files and content files are, for all practical purposes, synonymous. To conclude otherwise would be to elevate form over substance.
(ER0049:26-28, emphasis in original.)
The District Court erred. A dot-torrent file downloaded from Defendants’ system is tiny compared to the corresponding content file, e.g. a major video production typically takes 17 hours to download via BitTorrent. (ER0478:14-20, ER00495:9-27.) Downloading a dot-torrent file leads to successfully downloading content only if a designated tracker and a seed remain online. (ER0511:15-20.) For “practical purposes,” the two downloads are not synonymous.” One is quick and sure and the other is prolonged and chancy. “Automatic downloading” is a feature of BitTorrent technology for which defendants have no responsibility. “Automatic downloading” in the BitTorrent
network is like “automatic downloading” of .pdf files (for Adobe Acrobat software) when a user clicks on a link in a Google list. Individual users control whether their client applications, such as Azareus, have “automatic downloading.”
It seems Joe you will say anything to promote the idea that any torrent site operator is a criminal simply for running the site. Indeed, .torrent = .crime.
To acquire IRC data, isoHunt’s automated process or “bot” entered chat channels, announcing its presence. In an online isoHunt forum (see Facts B.4), people complained to Fung that the bot resembled investigators for the copyright enforcement group, recording Industry Association of America or RIAA. Posters disliked RIAA. One posting complained about “mondo big corporations making bizillions of dollars from record sales” while indie artists were suffering. In a posting on March 30, 2003, Fung quoted that posting and stated:
“agreed. they accuse us for thieves, and they r right. Only we r ‘stealing’ from the lechers (them!) and not the originators (artists).”
(ER0459-460 (SUF 14), ER0548:18-549:7, ER0550:16-551:8, ER0568-570 (message string).)
Fung altered the IRC bot to announce: “Files...are now being indexed for isoHunt.com...We completely OPPOSE RIAA & Co., so do not be alarmed by our indexing activities.” (ER0460 (SUF 18), ER0541:18-547:2, esp. ER0544:22-17 545:13, ER0554-557 (message string discussing and quoting the bot). The District Court prominently quoted Fung’s messages, made in connection with IRC and RIAA, as evidence of Defendants’ intent to induce infringement of
Plaintiffs’ movies and videos through BitTorrent. (ER0040:9-20, ER055:22-56:6.)
[...]
3. Defendants’ technical features are copyright neutral.
The District Court found that “infringing materials do not pass through or reside on Defendants’ system.” (ER0066:22-23.)
However, the District Court ruled:
Essentially, Defendants argue that they merely assembled a website that combined already-existing technologies, and that they did not include any unique innovations that were specially tailored to assist in the distribution of copyrighted works. These assertions are inapposite. The unrebutted factual evidence shows that Fung designed programs which improved the functioning of his websites with respect to infringing uses.
(ER061:8-14.)
The District Court disregarded the fact that Defendants have no means to distinguish infringing from non-infringing contents. Infringing contents do not pass through or reside on Defendants’ system. (ER0477:20-25.) The copyright status of contents must be inferred from filenames and size of files. “To protect plaintiffs’ copyrights, it would be necessary to block many independent video producers and to exclude public domain materials and/or video materials authorized for general distribution.” (ER0497:4-14.)
Plaintiffs alleged the importance of Fung’s innovative “BTHub.” (ER0361:26-362:16.) BTHub addressed the problem that a torrent file identifies specific trackers whose accessibility at a future time is uncertain. BTHub re-wrote torrent files to lead to an additional “tracker,” that was really a “tracker of trackers” in Defendants’ system. With BTHub, the user would have a better chance to connect to an operating tracker and to an active seed. (ER0487:15-19.) Plaintiffs alleged that BTHub “increased the efficiency and reliability of successful[] downloading of Plaintiffs’ copyrighted works.” (ER0361:27-362:2.)
The description of BTHub by Plaintiffs’ expert, Prof. Horowitz, does not identify any distinction between copyrighted works” and other works. (ER0520:11-521:13.) As noted by Professor Horowitz, Defendants discontinued BTHub because of system limitations but developed other means for the same end: “to make the content download more reliable.” (ER0521:14-363:5, ER0522:15-19.) The District Court did not mention BTHub in its rulings. As first of the “technical features promoting copyright infringement,” the District Court identified “Defendants’ websites [that] allow users to locate dot-torrent files” through a search engine. Then the District Court cited “automatic downloading."(ER0060:3-11.) BTHub, search engines and “automatic downloading” all handle copyright-infringing and on-infringing materials without distinction.
Yes Joe, someone who has a registered DMCA agent is obviously king of the pirates, right?
The District Court did not mention evidence of Defendants’ attempts to prevent infringement. Plaintiffs alleged:
“Defendants have in the past implemented filtering of searches and torrent postings of certain copyrighted content, including Microsoft content.” (ER0364:7-9, see also ER0494:1-7.)
Unfortunately, Defendants’ experiments fail to properly filter for, e.g., Microsoft content or pornography, for
which Fung has a personal dislike. (ER0493:14-494:1.) Defendants follow “notice-and-take-down” provisions of the Digital Millennium Copyright Act (“DMCA”). (ER0499:7-13.)
Allen Parker is Defendants’ Registered Agent with the copyright office for DMCA purposes. (ER0247:13-14.) Parker has fulfilled and performed his duties as Designated Agent. (ER0248:9-12.) He has successfully worked with “[n]umerous copyright owners and their agents, including, but not limited to RIAA (Alex Tomescu, Traci Crippen primaries), WebSheriff (John Giacobbi), StarDock Corporation, GrayZone and Microsoft.” (ER0249:28-216:2.) He talks to such persons on the telephone and resolves difficulties. (R0557:14-558:2.)
Defendants have not been able to work with agents of Plaintiffs or the Motion Picture Association of America (“MPAA”). “In fact, ... it’s only been the last six months or so that I’ve received e-mail notices from your side.”
(ER0554:20-25.)
Plaintiffs or MPAA apparently employ BayTSP, which has a history of abuse, including notices sent to Defendants’ service providers rather than to Defendants and heavy volumes of notices over a short period of time, called “mail bombs.” Accordingly, Defendants have blocked BayTSP from access to their servers; but Defendants did send BayTSP a telephone number to call should it desire to cooperate on notice-and-take-down procedures. Defendants maintain procedures that are authorized by the DMCA and that are efficient and transparent.
I answered this above, but I'll answer it here as well. He should have removed the very content that he admitted he himself downloaded and that he knew to be infringing.
There is no content to download from isohunt. At best, there are .torrent files that in turn point to the content, but no actual content is hosted there.
Innocent search engines don't have trackers
My God, having a tracker doesn't make you responsible either.
The only count Fung was found guilty was based on the evidence that he had specific knowledge of infringing content, and nothing else. The fact that you gloss over this, painting him as a "pirate king" (you're kidding me right?) for running a search engine that he commented on infringing .torrent files amazes me.
No, it was not his duty too. His knowledge and the evidence of such knowledge (commenting and giving technical help on torrents and various other things) suggested he did have specific knowledge, but there was no claim of duty in that he had to look for infringing files. in fact:
In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities. This “knowledge” standard is defined as “actual knowledge” or “willful ignorance.” According to the widely-cited House and Senate Report on the law, “if the service provider becomes aware of a ‘red flag’ from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.” H.R. Rep. 105-551(II), at 53; see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). The Congressional Report notes that the service provider is only liable if it “turned a blind eye to ‘red flags’ of obvious infringement.” 551(II), at 57. Other courts have applied this test as requiring “willful ignorance of readily apparent infringement.” UMG Recordings Inc. v. Veoh Networks Inc., __ F. Supp. 2d __, 2009 WL 3422839, at *7 (C.D. Cal. 2009) (citing Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)). H.R. Rep. 105-
Even under this stringent “willful ignorance” test, it is apparent that Defendants have “turned a blind eye to ‘red flags’ of obvious infringement.” See H.R. Rep. 105-551(II), at 57.
There is a wilful ignorance standard for further protection of search engines.
It would help if you could understand safe harbor laws, but that's too much to expect from someone who doesn't appear to have much interest in honest debate, particularly in simply repeating something already addressed.
But you also go after the site as they are breaking the law when they distribute/disseminate them and run their site as a for-profit, commercial enterprise.
Youtube runs advertising around all of its videos, and puts advertising in the videos should the uploader decide to do so (and Google/Youtube deems the video popular enough to warrant the opportunity).
So does their domain name get to be seized now? Will I have to browse to Youtube.co or Youtube.info tomorrow now that ICE has found this terrible piracy haven? Or does due process actually matter and rights holders should be expected to go through the DMCA process and actually go to trial to address prior restraint issues?
Reynolds might not write like Hemingway, but his knowledge of the tech involved is more than adequate.
It evidently isn't considering his woeful description of torrents which - as has already been pointed out - fails to distinguish between trackers, search engines and the .torrent files themselves, along side inability to distinguish between links to discussions about copyright from infringing files and encouraging infringement as already discussed. He also failed to recognise the difference between seizing only the domain as if it barred access entirely versus actually seizing the sites themselves.
And please tell me, how is a seizure of a domain name important in gathering and preserving evidence of any crime?
He also uses the listing of torrent sites that Torrent-Finder provides to show which ones it queries as if that is evidence of infringement (referring to the use of pirate in the titles of some sites like the pirate bay, and at one point merely the reference to Movies).
He also doesn't even understand that Torrent-Finder doesn't directly link to nor host infringing content - it merely embeds a browser through which to view the other websites that have been searched. Torrent-Finder is right in that it doesn't control the content on these sites - taking it down is pointless. The sites that actually have the .torrent files (not even the actual content) would still be available, saying nothing of any examination each individual sites compliance with DMCA take down notices (if any have even been files).
And this is without even having read the entire affidavit.
In which case you go after the person making said remixes/remakes. There are dozens of unauthorised remakes on Youtube, should we seize Youtube's domain name too? Or y'know, we could try the DMCA take down notices that rights holders already have at their disposal?
He more than adequately detailed the necessary evidence for the judge
a) On what grounds has Reynolds met any amount of necessary evidence to seize domains in such a way as to bring up prior restraint issues?
b) On what evidence that the judge actually properly, thoughtfully considered said evidence in combination with a thorough understanding of the technology involved?
Do you realise I myself have already cited Arcara previously?
The First Amendment does not bar enforcement of the closure statute against respondents' bookstore. United States v. O'Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity, and the sexual activities carried on in this case manifest absolutely no element of protected expression. The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity. Bookselling on premises used for prostitution does not confer First Amendment coverage to defeat a statute aimed at penalizing and terminating illegal uses of premises. Pp. 702-707. We imposed a greater burden of justification on the State even though the tax was imposed upon a nonexpressive activity, since the burden of the tax inevitably fell disproportionately - in fact, almost exclusively - upon the shoulders of newspapers exercising the constitutionally protected freedom of the press.
[..]
It is true that the closure order in this case would require respondents to move their bookselling business to another location. Yet we have not traditionally subjected every criminal and civil sanction imposed through legal process to "least restrictive means" scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction. Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O'Brien, 3 or where a statute based on a [478 U.S. 697, 707] nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star. This case involves neither situation, and we conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.
How exactly does the DMCA work? The DMCA allows for a rights holder to indicate when they believe a work/file is infringing. That work/file and only that one needs to be taken down if the service provider decides they do not want to stand up for it as fair use (which they almost always take it down regardless just to be on the safe side), with a process to contest the claim. It's also been ruled that infringement occurring out of wilful ignorance is also allowed, so long as a service provider complies with takedown notices properly.
You've completely botched Arcara v Cloud.
How so? He stated correctly that Arcara v Cloud ruled that the reason the store was allowed to be ordered to close down without concern for the First Amendment was because the reasons were not related to expression. At the very least in Arcara v Cloud, there was a hearing to judge this question in some way - the entire point about this case being there was no consideration given to first amendment issues with an adversarial hearing - the domains were seized, without even going into the fact that the site owners haven't been charged with anything, and that seizing of the domains is in no way needed to gathering evidence, as pointed out by others.
The issue is simply what are they actually doing, and why they're doing it.
The fact is, your entire argument has now fallen back on discussing intent, at which point we can dispense with any facts of how any of these sites work or what they do. We can merely claim or show their intent, and regardless of the merits of any discussion about the technology, how it works or their striking similarities to about a dozen and one other services, we should throw them in jail based on intent. There mere fact they intended to do something, regardless of whether this was actually achieved or whether the means were any different than any other service, is enough to convict them of criminal copyright infringement, fined a significant sum and/or thrown in jail.
They must have more than just a generalized knowledge that their site is primarily used for infringement.
And this is an even lower standard than the one set for Isohunt and Veoh.
In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities. This “knowledge” standard is defined as “actual knowledge” or “willful ignorance.” According to the widely-cited House and Senate Report on the law, “if the service provider becomes aware of a ‘red flag’ from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.” H.R. Rep. 105-551(II), at 53; see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). The Congressional Report notes that the service provider is only liable if it “turned a blind eye to ‘red flags’ of obvious infringement.” 551(II), at 57. Other courts have applied this test as requiring “willful ignorance of readily apparent infringement.” UMG Recordings Inc. v. Veoh Networks Inc., __ F. Supp. 2d __, 2009 WL 3422839, at *7 (C.D. Cal. 2009) (citing Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)). H.R. Rep. 105-
Even under this stringent “willful ignorance” test, it is apparent that Defendants have “turned a blind eye to ‘red flags’ of obvious infringement.” See H.R. Rep. 105-551(II), at 57.
Note that half the reason Isohunt lost was because of Fung's own actions specifically referencing torrents to infringing content, manually adapting (what I assume they're referring to) the autocomplete when a user starts typing search terms, and specifically indexing and providing lists of current top shows and films with the corresponding torrents, and that they didn't provide evidence nor even argue certain points. Meanwhile, Veoh won its case.
Here we're discussing a torrent site that uses entirely different means of providing users with search results with which they have no direct control over.
On the post: Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?
Re: Re: Re: Re: Re: Interesting...
It's an automatically generated list that regularly cycles/changes what appears there.
On the post: Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?
Re: Re: Re: #1 AC
Reading fail, no one has argued piracy represents a small amount of internet traffic.
So what about the sites that the labels sent promotional material to?
Music blogs are illegal? Torrents are illegal? .torrent = .crime rears its head again.
On the post: Case Study: How Dave Matthews Band Has Embraced The Modern Music Industry In Extraordinarily Profitable Ways
Re:
I personally think DMB is missing out most in their merchandising - I mean, how many t-shirts do they sell? Do they even push their t-shirts much? As Techdirt always says, cotton beats plastic any day.
On the post: How To Make The Patent System Even Worse: Make Patent Validity Incontestable
Re: Counter demand
See you there.
On the post: Exposing The False Sanctity Of 'Intellectual Property'
Re: Re: Re: Re: Genitive Versus Possessive
This make so sense to me at all. We deny the term intellectual property and its ability to accurately describe something far more nuanced and unlike physical property than some would like to admit, we do not deny the ability for laws like copyright to be created. Your argument conflates the denial of an inaccurate term with the denial of the existence or the ability to create the law itself.
It should be noted that nowhere in the creation of copyright was it recognised as anything like property, your argument is disingenuous in not recognising history and only presenting what you assume to be the correct view, based on seemingly self assurance.
On the post: isoHunt Appeals Process Begins
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On the post: isoHunt Appeals Process Begins
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https://www.eff.org/deeplinks/2009/09/umg-v-veoh-big-win-online-video
On the post: isoHunt Appeals Process Begins
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One last sginificant (and lengthy) quote from the IsoHunt appeal:
On the post: isoHunt Appeals Process Begins
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From the IsoHunt appeal:
It seems Joe you will say anything to promote the idea that any torrent site operator is a criminal simply for running the site. Indeed, .torrent = .crime.
Yes Joe, someone who has a registered DMCA agent is obviously king of the pirates, right?
On the post: isoHunt Appeals Process Begins
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There is no content to download from isohunt. At best, there are .torrent files that in turn point to the content, but no actual content is hosted there.
My God, having a tracker doesn't make you responsible either.
The only count Fung was found guilty was based on the evidence that he had specific knowledge of infringing content, and nothing else. The fact that you gloss over this, painting him as a "pirate king" (you're kidding me right?) for running a search engine that he commented on infringing .torrent files amazes me.
On the post: isoHunt Appeals Process Begins
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No, it was not his duty too. His knowledge and the evidence of such knowledge (commenting and giving technical help on torrents and various other things) suggested he did have specific knowledge, but there was no claim of duty in that he had to look for infringing files. in fact:
There is a wilful ignorance standard for further protection of search engines.
On the post: isoHunt Appeals Process Begins
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http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Notable_court_cases
On the post: Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
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Youtube runs advertising around all of its videos, and puts advertising in the videos should the uploader decide to do so (and Google/Youtube deems the video popular enough to warrant the opportunity).
So does their domain name get to be seized now? Will I have to browse to Youtube.co or Youtube.info tomorrow now that ICE has found this terrible piracy haven? Or does due process actually matter and rights holders should be expected to go through the DMCA process and actually go to trial to address prior restraint issues?
On the post: Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
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It evidently isn't considering his woeful description of torrents which - as has already been pointed out - fails to distinguish between trackers, search engines and the .torrent files themselves, along side inability to distinguish between links to discussions about copyright from infringing files and encouraging infringement as already discussed. He also failed to recognise the difference between seizing only the domain as if it barred access entirely versus actually seizing the sites themselves.
And please tell me, how is a seizure of a domain name important in gathering and preserving evidence of any crime?
He also uses the listing of torrent sites that Torrent-Finder provides to show which ones it queries as if that is evidence of infringement (referring to the use of pirate in the titles of some sites like the pirate bay, and at one point merely the reference to Movies).
He also doesn't even understand that Torrent-Finder doesn't directly link to nor host infringing content - it merely embeds a browser through which to view the other websites that have been searched. Torrent-Finder is right in that it doesn't control the content on these sites - taking it down is pointless. The sites that actually have the .torrent files (not even the actual content) would still be available, saying nothing of any examination each individual sites compliance with DMCA take down notices (if any have even been files).
And this is without even having read the entire affidavit.
On the post: Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
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On the post: Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
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a) On what grounds has Reynolds met any amount of necessary evidence to seize domains in such a way as to bring up prior restraint issues?
b) On what evidence that the judge actually properly, thoughtfully considered said evidence in combination with a thorough understanding of the technology involved?
On the post: Law Professor Explains How Even When A Site Copies An Entire Article, It May Still Be Fair Use
Re: Typical looniness from the university
On the post: Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
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http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=u s&vol=478&invol=697
My previous occasion I cited it:
http://www.techdirt.com/articles/20101128/15545412022/five-questions-homeland-security-concer ning-its-online-censorship-campaign.shtml#c1304
On the post: Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
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How so? He stated correctly that Arcara v Cloud ruled that the reason the store was allowed to be ordered to close down without concern for the First Amendment was because the reasons were not related to expression. At the very least in Arcara v Cloud, there was a hearing to judge this question in some way - the entire point about this case being there was no consideration given to first amendment issues with an adversarial hearing - the domains were seized, without even going into the fact that the site owners haven't been charged with anything, and that seizing of the domains is in no way needed to gathering evidence, as pointed out by others.
On the post: Torrent-Finder Plans To Fight Domain Seizure
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The fact is, your entire argument has now fallen back on discussing intent, at which point we can dispense with any facts of how any of these sites work or what they do. We can merely claim or show their intent, and regardless of the merits of any discussion about the technology, how it works or their striking similarities to about a dozen and one other services, we should throw them in jail based on intent. There mere fact they intended to do something, regardless of whether this was actually achieved or whether the means were any different than any other service, is enough to convict them of criminal copyright infringement, fined a significant sum and/or thrown in jail.
And this is an even lower standard than the one set for Isohunt and Veoh.
Note that half the reason Isohunt lost was because of Fung's own actions specifically referencing torrents to infringing content, manually adapting (what I assume they're referring to) the autocomplete when a user starts typing search terms, and specifically indexing and providing lists of current top shows and films with the corresponding torrents, and that they didn't provide evidence nor even argue certain points. Meanwhile, Veoh won its case.
Here we're discussing a torrent site that uses entirely different means of providing users with search results with which they have no direct control over.
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