I'm not saying there has to be a conviction in the underlying crime. I'm only saying that the government has to prove that the underlying crime was committed as one of the elements of an aiding and abetting charge. Here, I see no evidence that a crime was committed by anyone else, so I think the aiding and abetting charge will fail.
In Lemley's brief, he says, "the government has not shown and cannot show that the site ever was used to commit a criminal act, much less that it will be in the future."
As this point I'm inclined to believe him. I predict that the government wins on the issue of the temporary return of the domain names, but that Rojadirecta wins on a motion to dismiss in the forfeiture proceeding. That prediction is subject, of course, to change as new information becomes known.
Still, I think the government's legal theories have all been sound, and there's been no constitutional problems with all of this. I do hope the First Amendment arguments get fully hashed out before the case is over. I'll be upset if they aren't.
I'm about there with you. I don't think it's that hard to show that what Rojadirecta does is criminal, but they need to have proof that some crimes were committed by others. And I don't think they've done that. I don't think the problem is with the legal theory. I think the problem is that the proof is insufficient.
The government hasn't even made a prima facie showing that it was used for criminal acts in the past. All they've alleged is the linking issue, which is inducement, which is (at best) *civil* infringement.
The government is literally making up an entirely new criminal law here, then seizing someone's property based on their alleged violation of the made up law.
I think they'll lose this petition to get the domain name back pending the forfeiture proceeding because the government's argument that the property will be used again to commit crimes will win the day.
I do think though that a motion to dismiss by Rojadirecta in the forfeiture proceeding has a chance of winning for the reasons you state. Where's the underlying crime? Without that, it's not aiding and abetting. The government is saying that it's property used to commit crimes, but they haven't shown any crime yet. They can show that Rojadirecta tried to help others commit crimes, but they haven't shown that any other crimes were actually committed. I really don't get it.
Has any court even decided that just linking to other sites where unauthorized streams can be found, is a crime under US law? I know it's likely to found as such, given the current climate that the corporations are always right, but has it been ruled as such in any existing case?
Rojadirecta is putting the links there to assist others in infringing, and that makes them an accomplice. It's not like Google which links to everything. Rojadirecta intentionally links to the infringing stuff. They organize it and make it easier for others to infringe. Aiding and abetting criminal infringement has been a crime since about 1897, I believe. Aiding and abetting any crime is itself a crime, generally speaking. It's an old concept.
Wouldn't they have to help someone make money based on the infringement? For it to be criminal?
It can be criminal without making money:
§ 506. Criminal offenses
(a) Criminal Infringement. —
(1) In general. — Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed —
(A) for purposes of commercial advantage or private financial gain;
(B) by the 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; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
But still I think the problem is that they haven't shown that a crime was actually committed by someone other than Rojadirecta, regardless of whether that criminal made money or not.
Here you go, from the statute, 18 USC 983(f), para. 8. The seized property is not released if it:
(A) is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;
(B) is to be used as evidence of a violation of the law;
(C) by reason of design or other characteristic, is particularly suited for use in illegal activities; or
(D) is likely to be used to commit additional criminal acts if returned to the claimant.
If it's likely to be used to commit additional criminal acts, it won't be returned. I'd say the government has a very compelling argument that it's likely, so game over. It doesn't matter if it's being used as evidence or not.
I had another date wrong too. The seizures happened on February 1. So it was not until about 7 weeks later that Rojadirecta filed their Seized Asset Claim Form that got the clock running on the feds to file the forfeiture complaint. I had said 3 weeks, but should have said 7. My bad.
I know I read somewhere, I believe it was in a letter from ICE to some congressperson, that they have seized some servers and they are seizing servers whenever possible. That's about all I know about it.
I get that Rojadirecta is there trying to help people infringe, but don't they need to have proof that they actually did help someone infringe? That's what I don't get. You'd think they'd have evidence of that. If not, that might get Rojadirecta off the hook here.
OK, I'll throw this out there to get the ball rolling: I don't think the government has shown that Rojadirecta directly committed infringement, so that leaves accomplice liability for aiding and abetting others to commit criminal infringement.
In general, to prove that someone is an accomplice the government must show: (1) the defendant committed the requisite acts, i.e., incited or abetted, (2) that he had the requisite mens rea, and (3) that the person incited or abetted actually committed the offense.
It is not necessary that the person aided and abetted, i.e., the principal, be identified or convicted. However, you still have to prove that a crime was actually committed.
Where's the crime here?
I see allegations of how Rojadirecta attempted to help others to commit criminal infringement--that's the actus reus for accomplice liability--but I see no evidence that others did in fact commit that infringement they supposedly helped bring about.
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http://ia600604.us.archive.org/28/items/gov.uscourts.nysd.380557/gov.uscourts.nysd.38055 7.5.0.pdf
As this point I'm inclined to believe him. I predict that the government wins on the issue of the temporary return of the domain names, but that Rojadirecta wins on a motion to dismiss in the forfeiture proceeding. That prediction is subject, of course, to change as new information becomes known.
Still, I think the government's legal theories have all been sound, and there's been no constitutional problems with all of this. I do hope the First Amendment arguments get fully hashed out before the case is over. I'll be upset if they aren't.
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The government is literally making up an entirely new criminal law here, then seizing someone's property based on their alleged violation of the made up law.
I think they'll lose this petition to get the domain name back pending the forfeiture proceeding because the government's argument that the property will be used again to commit crimes will win the day.
I do think though that a motion to dismiss by Rojadirecta in the forfeiture proceeding has a chance of winning for the reasons you state. Where's the underlying crime? Without that, it's not aiding and abetting. The government is saying that it's property used to commit crimes, but they haven't shown any crime yet. They can show that Rojadirecta tried to help others commit crimes, but they haven't shown that any other crimes were actually committed. I really don't get it.
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Rojadirecta is putting the links there to assist others in infringing, and that makes them an accomplice. It's not like Google which links to everything. Rojadirecta intentionally links to the infringing stuff. They organize it and make it easier for others to infringe. Aiding and abetting criminal infringement has been a crime since about 1897, I believe. Aiding and abetting any crime is itself a crime, generally speaking. It's an old concept.
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It can be criminal without making money:http://www.copyright.gov/title17/92chap5.html#506
But still I think the problem is that they haven't shown that a crime was actually committed by someone other than Rojadirecta, regardless of whether that criminal made money or not.
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In general, to prove that someone is an accomplice the government must show: (1) the defendant committed the requisite acts, i.e., incited or abetted, (2) that he had the requisite mens rea, and (3) that the person incited or abetted actually committed the offense.
It is not necessary that the person aided and abetted, i.e., the principal, be identified or convicted. However, you still have to prove that a crime was actually committed.
Where's the crime here?
I see allegations of how Rojadirecta attempted to help others to commit criminal infringement--that's the actus reus for accomplice liability--but I see no evidence that others did in fact commit that infringement they supposedly helped bring about.
Am I just missing something here?
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