You've thoroughly confused me by accepting I was right. Is this one of those rabbit season/duck season exchanges where you expect me to reflexive take the position opposite yours?
There's no catch! If I'm wrong, and someone calls me on it, I admit it. It's a rarity on the internet, so that's probably why you're confused. :)
The problem is that you've already convicted Dotcom in your head of "piracy" just like the US Government.
I think what he did is morally wrong. I'm less certain that it's legally criminal. I don't have all the arguments yet.
You've created a false dilemma. Arguing against that bias isn't a "pro-piracy" bias because those aren't the only two options. You can be pro-due process without being pro-"piracy" or even pro-Dotcom.
The bias is that he's always super-skeptical of anything pro-copyright, and he loses his skepticism when it's anti-copyright.
Even if piracy were actually an appropriate term here, there can't be a pro-"piracy" bias because no copyright infringement has been proven. The US system of justice is supposed to have a pro-accused-but-not-convicted bias to presume innocence.
Nonsense. He can be pro-piracy by siding with the alleged infringers either before or after a court has ruled on it. Can you find any posts of his that lead you to think he's pro-copyright?
That's how it's a violation of due process. The Government is presuming guilt and proceeding on that basis. Any actions taken with that starting point are de facto violations of due process.
Huh? They aren't presuming his guilt. His innocence is presumed. They have probably cause that he's committed criminal acts. That leads to the warrants and arrest. Then, the government has the burden of proving he's a criminal. It works like this for everyone, and it doesn't violate procedural due process.
As for violates due process, it depends naturally how you look at it. For someone like you, who loves weasel words and changing definitions to suit your needs, it doesn't. For the rest of the class, we could start with how the U.S. government took data and hard drives from the raid in New Zealand AFTER it was ruled they couldn't do so. Violation of due process. Oh wait, it wasn't a violation of U.S. due process, so that makes it okay in your book.
Did a court in NZ rule that copying the drives for the US violated his due process rights under NZ law? If so, that sucks. I don't recall that being the case, though.
Including the rule that states criminal defendants have the right to a speedy trial? We're about to hit THREE YEARS since the initial raid that began all of this and so far, no trial.
He's stalling the trial by fighting extradition. That doesn't mean he's not getting a speedy trial.
Aren't you the one who is always calling Mike out for not making a firm opinion on any of the copyright stories he writes?
Now you are saying he has an extreme bias.
The two aren't mutually exclusive. He won't state a firm opinion on whether he thinks authors should have any rights. The bias is where he regurgitates Dotcom's arguments without a hint of skepticism, even though some of these arguments are pretty dumb. Likewise, he's super-skeptical of any report that says anything good about copyright or bad about infringement, and he's not at all skeptical when it's something good about infringement or bad about copyright.
I see...so that's how justice is supposed to work? You need to prove you're innocent?
What you wrote is exactly the problem.
It was an offhand remark, and I wasn't thinking of the burden of proof at trial. Obviously, the government has to prove his guilt first, and then the burden shifts to him to prove his innocence. If the government can't prove his guilt, then his presumed innocence will win the day.
But, of course, you're making the same mistake the DOJ is making in its arguments. If Dotcom is engaged in aiding and abetting criminal copyright infringement, who's doing the criminal copyright infringement? It would have to be the people who are actually infringing, but none of them are charged with *criminal* copyright infringement because they can't be. They don't come even remotely close to the standards of *criminal* copyright infringement.
You're conflating two separate issues. I'm talking about whether aiding and abetting criminal infringement is a crime. Dotcom argues it's not; I'm saying it is. Whether Dotcom is guilty of aiding and abetting is a separate issue. I mentioned that Dotcom makes good and bad arguments, and this is one of the good ones. What works were infringed? Who are the direct infringers. We haven't seen all of the government's evidence yet, and maybe they're going to use the server records to show that Movie X was download Y times in the U.S. from the servers in Virginia. I dunno. My understanding is it's not necessary to charge others with these crimes, but the government still needs to show these crimes occurred or else Dotcom can't be shown to have aided and abetted them.
The government's case hinges on mixing and matching. The users commit infringement. Dotcom aids and abets for profit. But with that you don't have enough to actually plead criminal copyright infringement. You're taking pieces from the end users and pieces from Dotcom and pretending you can glue them together in a hodge podge, and no one takes the time to sort out who's actually responsible for what actions.
The government has to show that it was "for purposes of commercial advantage or private financial gain," which I think can be the gain of not paying for it (but I'm spacing on how that section is interpreted at the moment). Or it can show "reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000." That part turns on the retail value of the works infringed. I don't think the government has to show that Dotcom did it for profit. I think it's enough that the third-parties he aided and abetted either gained from it or infringed works of a certain retail value. That Dotcom profited from it would go to damages (or forfeiture/restitution), not liability, IMO.
The obvious response to your statement is that no one needs to "prove his innocence" in a free country. If the government wants his stuff or to deprive him of his freedom, it needs to prove his guilt beyond a reasonable doubt.
Good point. The burden is on the government to prove his guilt. You're right.
So they're trying unsuccessfully to get Dotcom under criminal charges, but want the lower bar of civil forfeiture to seize his assets?
Dotcom could get on a plane to the United States and prove his innocence. But he's not doing that. I'm surprised the U.S. waited so long to go after the assets.
I laughed at this. All he has to do is come to the US if he wants his day in court. But in truth- for the reasons above- he'll never show go his own free will.
Yeah, the government's trying so hard to prevent Dotcom from having his day in court. LOL!
Has this legal argument been tested in other cases, or is it just as novel as all the rest of the DOJ's bullshit?
The aiding and abetting thing was dropped from Section 104 because it was redundant--Section 2 of Title 18 already criminalizes aiding and abetting. See, for example, Benton Martin, Jeremiah Newhall, Criminal Copyright Enforcement Against Filesharing Services, 15 N.C. J. L. & Tech. 101, 108 (2013) ("Although the 1976 Act dropped all mention of 'aiding and abetting' from the copyright statute, it appears that this change was intended merely to remove surplusage because this conduct remained a crime under 18 U.S.C. § 2."). It's not some crazy theory that the government cooked up just for Dotcom. "Persons who knowingly and willfully aid or abet copyright infringement are subject to the same criminal penalties as apply to the principal." 5-15 Nimmer on Copyright § 15.01.
No. Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a pro-piracy bias. That said, please explain how any of this violates due process.
Please show the class where ANYONE has been convicted of criminal infringement in the MegaUpload case. See cause to charge him with helping a criminal, in a system where innocent until proven guilty, requires there to be an adversarial legal process where guilt or innocence is proven before we can just slap a label on someone and pretend that is enough to run with.
As you well know, Dotcom is fighting like hell to avoid his day in court in the United States. But that's not the point. Dotcom is arguing that there's no such thing as aiding and abetting criminal copyright infringement. That's not true. The statute is 18 U.S.C. 2 (combined with 17 U.S.C. 506). That's the statute he's charged under for the aiding and abetting charge. This particular action is a civil forfeiture in rem. There's no need for the underlying crime to be proved first (that's criminal forfeiture). With a civil forfeiture, the standard is that the underlying crime has to be proved by a preponderance of the evidence. The government has to meet that burden before the property can be forfeited. The constitutionality of this type of in rem action has been tested and held not to violate due process by the Supreme Court.
I know it's Dotcom, so you've taken off your Skeptic Hat and put on your Believer Cap, but some of these arguments are just dumb. You do realize that Dotcom's lawyers are just throwing out whatever they can think of to protect Dotcom's assets, no matter how little merit the argument has, right? It's strange how you just repeat these arguments like they're the end of the matter.
Just a couple of examples for ya:
(1) Dotcom argues that there is no such thing as aiding and abetting criminal copyright infringement because that language was taken out of the Copyright Act: "But that is no conceivable basis for criminal prosecution, much less resulting forfeiture. Congress specifically removed from the Copyright Act language about aiding and abetting criminal infringement." The obvious response to this is that 18 U.S.C. 2 criminalizes aiding and abetting criminal copyright infringement--and that's the statute that Dotcom is charged under. While aiding and abetting under Section 104 was changed, that doesn't change Section 2. Congress didn't remove the language from Section 104 to suddenly make it legal to aid and abet a criminal infringer. Give me a break.
(2) Dotcom argues that the court doesn't have personal jurisdiction over the property: "Exclusive custody and control obviously do not exist over the foreign assets at issue here. Nor does this Court have constructive possession over the property." This is dumb. The court took control over the property when its warrants were executed and the property seized. It's precisely because the court has control over the property that Dotcom doesn't have that control. The court took it from him. See, for example, United States v. All Funds on Deposit in Four Swiss Bank, 2011 WL 7102568 (E.D. Va. Oct. 26, 2011) ("There is in rem jurisdiction pursuant to 28 U.S.C. § 1355(b)(2), as . . . there is constructive control over the foreign assets at issue pursuant to the service of the warrant of arrest discussed supra.")
Dotcom makes some good points, but he makes some bad ones too. Why are you so skeptical of the government's position, but not at all skeptical of Dotcom's position? This is a double standard--and further evidence that you're pro-piracy, by the way.
Perhaps because APIs are not specific computer code (the expression) at all, but rather are more like a communications specification, a protocol. APIs are an algorithm, a method of operation.
They perform an operation, but the code itself is expression. It's the copying of the code, including the copying of the structure of the code, that's at issue. Oracle isn't claiming that the functionality is copyrighted. Google was and is free to write it's own code that performs the same function.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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There's no catch! If I'm wrong, and someone calls me on it, I admit it. It's a rarity on the internet, so that's probably why you're confused. :)
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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I think what he did is morally wrong. I'm less certain that it's legally criminal. I don't have all the arguments yet.
You've created a false dilemma. Arguing against that bias isn't a "pro-piracy" bias because those aren't the only two options. You can be pro-due process without being pro-"piracy" or even pro-Dotcom.
The bias is that he's always super-skeptical of anything pro-copyright, and he loses his skepticism when it's anti-copyright.
Even if piracy were actually an appropriate term here, there can't be a pro-"piracy" bias because no copyright infringement has been proven. The US system of justice is supposed to have a pro-accused-but-not-convicted bias to presume innocence.
Nonsense. He can be pro-piracy by siding with the alleged infringers either before or after a court has ruled on it. Can you find any posts of his that lead you to think he's pro-copyright?
That's how it's a violation of due process. The Government is presuming guilt and proceeding on that basis. Any actions taken with that starting point are de facto violations of due process.
Huh? They aren't presuming his guilt. His innocence is presumed. They have probably cause that he's committed criminal acts. That leads to the warrants and arrest. Then, the government has the burden of proving he's a criminal. It works like this for everyone, and it doesn't violate procedural due process.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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Did a court in NZ rule that copying the drives for the US violated his due process rights under NZ law? If so, that sucks. I don't recall that being the case, though.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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He's stalling the trial by fighting extradition. That doesn't mean he's not getting a speedy trial.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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Yes, but that doesn't mean we should just assume that all of Dotcom's self-serving arguments are correct.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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Now you are saying he has an extreme bias.
The two aren't mutually exclusive. He won't state a firm opinion on whether he thinks authors should have any rights. The bias is where he regurgitates Dotcom's arguments without a hint of skepticism, even though some of these arguments are pretty dumb. Likewise, he's super-skeptical of any report that says anything good about copyright or bad about infringement, and he's not at all skeptical when it's something good about infringement or bad about copyright.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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What you wrote is exactly the problem.
It was an offhand remark, and I wasn't thinking of the burden of proof at trial. Obviously, the government has to prove his guilt first, and then the burden shifts to him to prove his innocence. If the government can't prove his guilt, then his presumed innocence will win the day.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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http://arstechnica.com/tech-policy/2012/07/kim-dotcom-offers-to-come-to-us-rather-than-be-ext radited/
Would you care to re-visit that opinion, sir?
He doesn't get some special rules just for him. He'd have to play by the same rules as every other criminal defendant.
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On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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You're conflating two separate issues. I'm talking about whether aiding and abetting criminal infringement is a crime. Dotcom argues it's not; I'm saying it is. Whether Dotcom is guilty of aiding and abetting is a separate issue. I mentioned that Dotcom makes good and bad arguments, and this is one of the good ones. What works were infringed? Who are the direct infringers. We haven't seen all of the government's evidence yet, and maybe they're going to use the server records to show that Movie X was download Y times in the U.S. from the servers in Virginia. I dunno. My understanding is it's not necessary to charge others with these crimes, but the government still needs to show these crimes occurred or else Dotcom can't be shown to have aided and abetted them.
The government's case hinges on mixing and matching. The users commit infringement. Dotcom aids and abets for profit. But with that you don't have enough to actually plead criminal copyright infringement. You're taking pieces from the end users and pieces from Dotcom and pretending you can glue them together in a hodge podge, and no one takes the time to sort out who's actually responsible for what actions.
The government has to show that it was "for purposes of commercial advantage or private financial gain," which I think can be the gain of not paying for it (but I'm spacing on how that section is interpreted at the moment). Or it can show "reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000." That part turns on the retail value of the works infringed. I don't think the government has to show that Dotcom did it for profit. I think it's enough that the third-parties he aided and abetted either gained from it or infringed works of a certain retail value. That Dotcom profited from it would go to damages (or forfeiture/restitution), not liability, IMO.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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Mike's bias is pretty extreme, so it calls into question everything he posts on copyright. There's no balance to it. It's lopsided.
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Good point. The burden is on the government to prove his guilt. You're right.
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Ha! They should make a movie together. I'd pirate that.
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Dotcom could get on a plane to the United States and prove his innocence. But he's not doing that. I'm surprised the U.S. waited so long to go after the assets.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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Yeah, the government's trying so hard to prevent Dotcom from having his day in court. LOL!
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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The aiding and abetting thing was dropped from Section 104 because it was redundant--Section 2 of Title 18 already criminalizes aiding and abetting. See, for example, Benton Martin, Jeremiah Newhall, Criminal Copyright Enforcement Against Filesharing Services, 15 N.C. J. L. & Tech. 101, 108 (2013) ("Although the 1976 Act dropped all mention of 'aiding and abetting' from the copyright statute, it appears that this change was intended merely to remove surplusage because this conduct remained a crime under 18 U.S.C. § 2."). It's not some crazy theory that the government cooked up just for Dotcom. "Persons who knowingly and willfully aid or abet copyright infringement are subject to the same criminal penalties as apply to the principal." 5-15 Nimmer on Copyright § 15.01.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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Wow, I never knew...
No. Taking everything Dotcom argues at face value, while being skeptical of everything the government argues, shows a pro-piracy bias. That said, please explain how any of this violates due process.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
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See cause to charge him with helping a criminal, in a system where innocent until proven guilty, requires there to be an adversarial legal process where guilt or innocence is proven before we can just slap a label on someone and pretend that is enough to run with.
As you well know, Dotcom is fighting like hell to avoid his day in court in the United States. But that's not the point. Dotcom is arguing that there's no such thing as aiding and abetting criminal copyright infringement. That's not true. The statute is 18 U.S.C. 2 (combined with 17 U.S.C. 506). That's the statute he's charged under for the aiding and abetting charge. This particular action is a civil forfeiture in rem. There's no need for the underlying crime to be proved first (that's criminal forfeiture). With a civil forfeiture, the standard is that the underlying crime has to be proved by a preponderance of the evidence. The government has to meet that burden before the property can be forfeited. The constitutionality of this type of in rem action has been tested and held not to violate due process by the Supreme Court.
On the post: Megaupload Say US Gov't Is Trying To Steal Assets Based On Crimes That Are 'Figments Of The Gov't's Boundless Imagination'
Just a couple of examples for ya:
(1) Dotcom argues that there is no such thing as aiding and abetting criminal copyright infringement because that language was taken out of the Copyright Act: "But that is no conceivable basis for criminal prosecution, much less resulting forfeiture. Congress specifically removed from the Copyright Act language about aiding and abetting criminal infringement." The obvious response to this is that 18 U.S.C. 2 criminalizes aiding and abetting criminal copyright infringement--and that's the statute that Dotcom is charged under. While aiding and abetting under Section 104 was changed, that doesn't change Section 2. Congress didn't remove the language from Section 104 to suddenly make it legal to aid and abet a criminal infringer. Give me a break.
(2) Dotcom argues that the court doesn't have personal jurisdiction over the property: "Exclusive custody and control obviously do not exist over the foreign assets at issue here. Nor does this Court have constructive possession over the property." This is dumb. The court took control over the property when its warrants were executed and the property seized. It's precisely because the court has control over the property that Dotcom doesn't have that control. The court took it from him. See, for example, United States v. All Funds on Deposit in Four Swiss Bank, 2011 WL 7102568 (E.D. Va. Oct. 26, 2011) ("There is in rem jurisdiction pursuant to 28 U.S.C. § 1355(b)(2), as . . . there is constructive control over the foreign assets at issue pursuant to the service of the warrant of arrest discussed supra.")
Dotcom makes some good points, but he makes some bad ones too. Why are you so skeptical of the government's position, but not at all skeptical of Dotcom's position? This is a double standard--and further evidence that you're pro-piracy, by the way.
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They perform an operation, but the code itself is expression. It's the copying of the code, including the copying of the structure of the code, that's at issue. Oracle isn't claiming that the functionality is copyrighted. Google was and is free to write it's own code that performs the same function.
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