Previously Chatty Homeland Security Clams Up After Errors In Domain Seizures Pop Up

from the no-comment dept

As you're probably aware, we've been covering the many serious legal questions raised by Homeland Security's decision to use its Immigration and Customs Enforcement (ICE) group to seize a bunch of domain names. As we've reported, the basis for the domain name seizures was full of serious technical and legal errors, which called into question the expertise of ICE on this subject. This was made even worse when details revealed that many of the "examples" used to prove infringement were sent by representatives of the copyright holders.

Right after the domain name seizures, we noted that the Assistant Deputy Director for ICE, Erik Barnett, was perfectly happy to go on the record defending the seizures -- brushing off the concerns many people had about the process. He admitted, point blank, that ICE relied heavily on the very biased claims of industry insiders as the basis for what sites to target, and suggested that there were no serious due process problems with taking down entire websites prior to any adversarial trial.

Of course, this was all before the affidavit had been released, and the myriad errors became clear. So I asked Erik if he would respond to a short list of questions concerning the process and the specific errors made, figuring that since he had been so happy to speak out about these domain seizures in the past, he would be able to answer those questions, and perhaps put some of our concerns to rest. While I emailed Erik directly, I instead heard back from Homeland Security's "Office of Public Affairs," which noted that Homeland Security will not comment on "an ongoing investigation before court." Except, that's blatantly false, since Erik was already on the record speaking to other publications.

Either way, I responded and said I understood not being able to comment on ongoing issues (I had asked if the operators of these websites were going to be charged), I would retract the questions having to do with that aspect of the case, but wanted to see if Erik or someone else at Homeland Security might answer my other questions concerning what appeared to be technical and legal errors in the process itself -- such as what efforts did ICE make to ensure that the domain name seizures did not represent prior restraint, as is required in such seizures under the current law, and whether or not this issue was discussed with the magistrate judge who approved the seizure warrant. I also asked whether or not anyone outside of the RIAA/MPAA representatives (and other government employees) were asked to review the evidence prior to the seizures.

Not surprisingly, after asking a second time if Homeland Security could address these questions, I was told "we are not discussing the matter at this time." So, there you go. Homeland Security had no problem playing up these seizures immediately following their seizure, but as more and more evidence comes out concerning mistakes made, the agency clams up. Transparency in government.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Xyro TR1 (profile), Jan 5th, 2011 @ 10:13am

    C'mon.

    I still don't see what's so hard about someone going "sorry guys, we fucked up." But I guess they have to acknowledge that they fucked up in the first place for that to happen...

     

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    Marcus Carab (profile), Jan 5th, 2011 @ 10:42am

    Re: C'mon.

    Unfortunately the admission wouldn't be "sorry we fucked up" so much as it would be "yes, we've been allowing private interest groups to manipulate the government for their own purposes," and I don't think they'll be admitting that any time soon.

     

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  3.  
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    Joe (profile), Jan 5th, 2011 @ 11:17am

    Re: Re: C'mon.

    Unless someone pays them more than the special interest groups to say that. And all these years, I thought prostitution was illegal.

     

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  4.  
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    Anonymous Coward, Jan 5th, 2011 @ 11:19am

    I, for one, am pleased that the "invitation" to respond was not accepted. This is now a matter for the courts to decide, and I have no reason to doubt they will do so in a principled manner.

     

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  5.  
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    :Lobo Santo (profile), Jan 5th, 2011 @ 11:22am

    Re: Re: Re: C'mon.

    Prostitution for sex is illegal.

    Prostitution for laws is hypothetically also illegal, but is so rarely prosecuted by corrupt prostitute Attorney Generals that it may as well be legal.

     

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  6.  
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    :Lobo Santo (profile), Jan 5th, 2011 @ 11:32am

    Re: Re: Re: Re: C'mon.

    To put it another way:

    There's good money if F*cking the tax-payers.

     

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  7.  
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    Thing (profile), Jan 5th, 2011 @ 11:41am

    I still boggle that copyright falls under homeland security

     

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  8.  
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    Anonymous Coward, Jan 5th, 2011 @ 11:43am

    Re: C'mon.

    It isn't something that comes up on TD very often either.

    The errors may or may not be material to the seizures (and likely would not have swayed the judge one way or the other), and discussing them pretty much would lend credence to them. I don't think anyone involved wants to make this a case about minor errors in a document, rather they want it to be about the overall concept, which is for the courts to decide.

    No doubt the ICE people took one look at TD and knew right away this wasn't a place to talk to, because no matter what they said, it would be nitpicked to pieces.

     

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  9.  
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    Anonymous Coward, Jan 5th, 2011 @ 11:45am

    Re: Re: C'mon.

    Right..."minor errors." I'm sure if you keep repeating it enough it may actually become true.

     

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    Chronno S. Trigger (profile), Jan 5th, 2011 @ 11:56am

    Re: Re: C'mon.

    I don't know, "nitpicking" about how the probable cause reasoning is invalid is akin to pulling the foundation out from under a house. The rest just kinda falls down. Nitpicking is saying the sidings cracked (they illegally played song B instead of the written song A) not the foundation doesn't exist (The songs were legally played).

     

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    weneedhelp (profile), Jan 5th, 2011 @ 11:57am

    Re: Re: C'mon.

    "because no matter what they said, it would be nitpicked to pieces." Yeah they knew TD, and its community wouldnt buy their bullshit without higher scrutiny than the lapdog MSM. They just want someone to regurgitate what is told to them without a thought. Thats what Faux and CNN are for.

    "I don't think anyone involved wants to make this a case about minor errors in a document"
    No you dont think. Minor errors? O'KAY...

    "rather they want it to be about the overall concept"
    What? The concept of seizing property without proper oversight, or following current laws?

    Read your comment again and reflect.

     

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    Justin Olbrantz (Quantam) (profile), Jan 5th, 2011 @ 11:58am

    Re: C'mon.

    Remember that this is the government carrying out official business. If the seizure was unlawful, can think of a couple Constitutional rights the action would violate. Consequently, there's a good chance "sorry guys, we fucked up" would get them sued.

     

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    Chronno S. Trigger (profile), Jan 5th, 2011 @ 11:59am

    Re:

    I got to ask, what courts? I haven't heard anything about charges.

     

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    Anonymous Coward, Jan 5th, 2011 @ 12:09pm

    Re: Re: Re: C'mon.

    wow, that was agressive, and sort of wrong.

    TD made the request, I have no doubt that the people running the press office had a quick look at the site, maybe searched for some terms relative to the story. They probably came across the one sided hatchet job from a while back and figured out where they were at. Quite simply, talking to TD would be sort of worthless, and likely would hurt them, not help.

    End of problem.

    The errors in the document are minor. For people like you and I who are more technically inclined, we can see the errors. Would those errors have changed the issuing of the warrant? That is up to the defendant's lawyers to argue, isn't it?

    he concept of seizing property without proper oversight, or following current laws?

    Proper oversight is the judge who issued the warrant. Current laws would have to be addressed in a manner that justifies the warrant. Unless of course you are suggesting that the judge and all of the ICE are on the **AA payroll. That would pretty much be a tin foil defense.

     

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    Anonymous Coward, Jan 5th, 2011 @ 12:11pm

    Re: Re: Re: Re: C'mon.

    The errors are not merely technical, and trying to pretend otherwise just makes you look silly.

     

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    Anonymous Coward, Jan 5th, 2011 @ 12:13pm

    Re: Re: Re: Re: C'mon.

    Except these gov't. organizations are on the taxpayers' payroll. Not too much to ask that they justify their actions to their paymasters, is it?

     

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    Jay (profile), Jan 5th, 2011 @ 12:14pm

    Re: Re:

    Weren't the cases closed after the seizures took place, so that no one had a say in the takedowns but the industries involved?

    I would seriously look at that angle.

     

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    Overcast (profile), Jan 5th, 2011 @ 12:22pm

    Typical tyrannical government at work on yet another day or defending "corporate rights", at *any* cost.

    In spite of the fact that the constitution gives corporations no rights, only individuals.

     

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  19.  
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    Anonymous Coward, Jan 5th, 2011 @ 12:46pm

    Re: Re:

    The case currently resides within the US District Court for the Central District of California.

     

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    Anonymous Coward, Jan 5th, 2011 @ 12:47pm

    Re:

    This is now a matter for the courts to decide, and I have no reason to doubt they will do so in a principled manner.

    “Where the transcendent value of speech is involved, due process certainly requires in the circumstances of this case that the State bear the burden of persuasion to show that the appellants engaged in criminal speech.” ——Speiser v Randall (1958).

     

     

    Though the proceeding in question is divested of many of the aggravating incidents of actual search and seizure, yet, as before said, it contains their substance and essence, and effects their substantial purpose. It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.” ——Boyd v United States (1886)

     

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  21.  
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    Anonymous Coward, Jan 5th, 2011 @ 1:41pm

    Re: Re: C'mon.

    Infringement is a minor crime/tort that really shouldn't be a crime/tort. Any error made by the government is a bigger error than the "error" of accidental or even intentional infringement.

    but I suppose frivolous laws only apply to the citizens and not to the corporations and the corporate controlled government. Though, in this case, the laws being broken by the government to combat alleged infringement aren't frivolous and they're certainly far more serious than the crime/tort of infringement.

    But then again, breaking the law is only material when such laws are designed to help support big corporations. When breaking the law is intended to help big corporations (like the laws that the department of homeland security is breaking) then breaking such laws aren't material. It's OK to break the law, as long as doing such helps you.

     

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  22.  
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    weneedhelp (profile), Jan 5th, 2011 @ 1:41pm

    Re: Re: Re: Re: C'mon.

    "wow, that was agressive, and sort of wrong." - Never been the hold your hand and tell you its ok kind of guy. No really read your post and think.(Constructive criticism, not a cut)

    "For people like you and I who are more technically inclined, we can see the errors."
    You dont expect a judge to notice them? C'mon man. Really? He noticed, or just rubber stamped it, and if he read and missed them, he should step down, period.

    "Proper oversight is the judge who issued the warrant."
    If he was doing the job correctly, the errors would have been mentioned, changed, then brought back. All would have been legit, and we would not be having this exchange. The warrant appears to have been rubber stamped.
    More of the good ole boys club.
    http://www.psdgraphics.com/file/red-approved.gif

    "Unless of course you are suggesting"
    Never suggested any of that, and leave my tin foil hat out of this.

    "They probably came across the one sided hatchet job"
    (Link needed)

    "I have no doubt that the people running the press office had a quick look at the site"
    I have no doubt they looked at the site and realized this community would see through the BS propaganda they are pushing, and would call them out on every lie.

    If you had a solid case, you would not want "minor errors" causing your case to get thrown out; Correct? So this indicates to me that 1) DHS had a bonehead write this up, and f'ed up royally 2) Had a judge that would pretty much sign anything handed to them by DHS. Both conditions are a disservice to the American people.

    Immigration and Customs Enforcement + other duties as follows. Nice.

     

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  23.  
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    Anonymous Coward, Jan 5th, 2011 @ 1:44pm

    Re: Re: Re: C'mon.

    (Then IP maximists turn around and say "but it's the law, it's the law. It's always wrong to break the law. Breaking the law is wrong!!!!! But then, when the department of homeland security does it to enforce IP laws, it's no big deal. IP maximists don't care about the law, they're hypocrites. They only care about one thing and one thing alone, themselves. Enforcing IP isn't about the principle of upholding the law, it's about the principle of helping big corporations extort money from the general public).

     

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  24.  
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    Anonymous Coward, Jan 5th, 2011 @ 1:49pm

    Re: Re: C'mon.

    "If the seizure was unlawful"

    Laws don't apply to government and big corporations. They only apply to citizens and especially poor ones.

     

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  25.  
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    Anonymous Coward, Jan 5th, 2011 @ 1:52pm

    Re: Re: C'mon.

    "I don't think anyone involved wants to make this a case about minor errors in a document, "

    Yes, because it's OK for the government and big corporations to break these "minor" laws, but it's not OK for citizens to break the much more minor laws of infringement.

    "rather they want it to be about the overall concept, which is for the courts to decide."

    The overall concept that it's wrong to break the law? Oh, that's right, that concept only applies to poor citizens, not to big corporations and the government.

     

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  26.  
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    Anonymous Coward, Jan 5th, 2011 @ 1:59pm

    Re:

    Typical tyrannical government at work on yet another day or defending "corporate rights", at *any* cost.

    In spite of the fact that the constitution gives corporations no rights, only individuals.


    you should be absolutely correct. unfortunately, the supreme court has given corporations personhood, which means they have all the rights and protections of "the people."

    so yeah, F all. if i had the money to move out of this country, i would in a heartbeat.

     

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  27.  
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    Anonymous Coward, Jan 5th, 2011 @ 2:04pm

    Re: Re: Re: C'mon.

    "rather they want it to be about the overall concept"

    The overall concept is that IP maximists get to pick and choose which laws get followed and which ones don't. Laws only get followed when they're convenient for them.

     

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  28.  
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    Anonymous Coward, Jan 5th, 2011 @ 2:06pm

    Re: Re: C'mon.

    You call seizing of legal material "minor error"?

     

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  29.  
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    Anonymous Coward, Jan 5th, 2011 @ 2:44pm

    Re: Re: C'mon.

    "it would be nitpicked to pieces."

    But it's OK for IP maximists to nitpick whenever someone (allegedly) breaks an unimportant infringement law.

     

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    Nexcerpt (profile), Jan 5th, 2011 @ 3:31pm

    Wanting evidence may lead to finding evidence

    My comment is not based on a review of the case; rather, it is based on the ambiguity and assumptions within this post.

    Perhaps the response from ICE was disingenous. However, there may be a distinction between commenting "right after the domain name seizures," and commenting while the matter is "before [the] court."

    The first may be to inform the media of the prospect of pending charges (which seems acceptable even from the perspective of the court, and desirable from that of the public). The second might be perceived by all parties as an attempt to manipulate the legal process.

    I'm not suggesting ICE is blameless; I'm not making any claims about their behavior in any other context. I'm simply pointing out that this post DOES answer exactly the question it claims was NOT answered. The quotes in this post make ICE's explanation for refusing to speak clear: the case is in court.

     

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  31.  
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    Anonymous Coward, Jan 5th, 2011 @ 7:22pm

    Re: Wanting evidence may lead to finding evidence

    The issue here is that the answer provided is not what the questioner wanted to hear. He wanted more. He wanted a debate so as to be able to engage in cross examination.

    The department was wise to truncate further "conversation" by noting the painfully obvious. "The matter is now before the court."

     

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  32.  
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    Darryl, Jan 5th, 2011 @ 8:01pm

    ICE did not issue any seizures, The Court did. you're legal system did.

    Homeland Security will not comment on "an ongoing investigation before court."

    What do you have trouble with Mike, that is a standard comment, and it is true, by law they are not allowed to comment on an investigation that is before the court.

    They ARE allowed to comment in the subject in general, so yes, he is allowed to defend the seizures, but he is not allowed to comment on a specific case that IS NOT before the court.

    It is also NOT ICE that conducted the seizures, it is the court and the judge, who ordered the seizures, not ICE.

    ICE told the court about it, and the court decided what ICE told them was valid, and worthy of action.

    The COURT then takes action, not ICE, once ICE tells the judge and once the judge agrees, then it is up to the judge and the courts to take appropriate action..

    That is why someone from ICE cannot comment about the case, is because it is out of his hands at this point, it is before the court, he can defend the seizures in general, but he CANNOT comment specifically on something before the court..

    He tells you that, and like most stupid reporters, you say "OK I understand that,, BUT how about if I ask you exactly the same question about the same thing, but word it differently, will that help"..

    Ofcourse not,

    The very next question you ask him, after he tells you he cannot comment on that specific case, is a question asking him to comment on that specific case !!!!..

    Makes you look stupid, or at best, you do not understand what you are talking about, and seem to have little understanding of the legal processes that are involved with any actions.

    You're claims that ICE are the ones conducting the seizures is incorrect...

    It is a court ordered seizure, that means it is court ordered, and court approved, and the courts have ALLREADY looked at the probabity and legality of the sites, and have allready made a determination. thus the seizures.

    It has been before a judge, and a ruling has been made, not by ICE but by your legal system.

    but as more and more evidence comes out concerning mistakes made, the agency clams up. Transparency in government

    What evidence ? has "come out" concerning 'mistakes', and what does it matter, the JUDGE does not feel it is a mistake, and he is the one who matters.

    It's again, not in ICE's hands now it's in the courts, and the courts, tend to take legal process seriously.

    What happened, if you have to be educated, is that ICE saw something they thought was illegal they went to the court, and seen a judge, and showed the judge what they have seen.

    IF the judge, say's "Yes, you are right that is against the law", then it is the Judge and the Court that takes appropriate action, not the person who saw the crime and went to the court.

    So if you are critical of ICE, then you should be equally critical of your legal system, after all it is not ICE seizing those sites, it's your appointed courts of law..

    such as what efforts did ICE make to ensure that the domain name seizures did not represent prior restraint, as is required in such seizures under the current law, and whether or not this issue was discussed with the magistrate judge who approved the seizure warrant.

    What efforts ?? they went to the court, and they convinced a judge that what they were saying was true, the judge would have determined the legality of the accusations, including prior restraint, and the current law, (thats what judges and courts do !!).

    Once all the legal details are worked out by the court and the judge, then the court issues the seizures, and the case is 'before the court'.

    It is out of the hands of ICE, and in the hands of the court, ICE is in no position legally or morally to comment on the case once it is before the court.

    Mike, as usual, this is all stuff you are 100% aware of, yet, you constantly twist the truth. why are you making out that it is ICE and not the court, and the judge, that have rightfully issued the seizures ?

    The fact a judge, and court issued the seizures is proof that the process was correct, and legal.

    Asking ICE about the process, that WORKED, and was effective, and accepted by the court, cannot be questioned after the fact.

    The judge made his decision, and no matter what you think, or say, that is not going to change. A law has been broken, a judge determined that was the fact, therefore the judge rules on the case, and ordered action.. end of story..

     

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  33.  
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    Darryl, Jan 5th, 2011 @ 8:18pm

    The law is for ALL, even Disney

    "Go on the record for defending seizures".

    "In general, what we can say is, there are specific complaints from rights holders that these sites were infringing on copyrights."

    Yes, when someone lodges a complaint, they should look at who lodges the complain, and if they are successful in the field, or are "big", or is called "disney" then that complain should be ignored.

    Only complaints from people with no financial interest in it, or who will suffer no loss should be able to lodge a complaint to the law !!!.

    that would mean you could be part of the legal elite, where you could be complained about, but for some reason, they are not allowed to complain about you because they have an interest in what you are doing, and what you are doing is damaging them.

    So if you are a successful bank, making lots of money for your investors, and someone robs off you're bank, and you call the police, should the police say, "you exagurated how much was stolen, you are doing very well, therefore you do not deserve legal protection or support from the law, but if you were poor, and ran a really crappy bank, and did not make much money for your investors, then we would be right around to help you.

    So you are saying that IT MATTER'S who can use the law and who cannot, if you are successful you do not have a right to the law ?

    If you are successful, you do not have a right to tell the authorities about it, and you should have no expectation that the authorities will act for you, because you are 'big enough' or something..

    How does that work Mike ??

    ICE should of ignored the complains because it was from a big media company ?

     

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    Anonymous Coward, Jan 5th, 2011 @ 10:05pm

    Re: The law is for ALL, even Disney

    "Yes, when someone lodges a complaint, they should look at who lodges the complain, and if they are successful in the field, or are "big", or is called "disney" then that complain should be ignored."

    It's not like the government ignores Disney. Heck, the department of homeland security even went over to Disney's headquarters to announce their intent to serve Disney. I wish they would come over to my house to do such, but I don't have enough campaign contribution money.

     

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    techflaws.org (profile), Jan 5th, 2011 @ 10:40pm

    Re: Re: Re: Re: C'mon.

    Quite simply, talking to TD would be sort of worthless, and likely would hurt them, not help

    How could it hurt them if all they made were only minor errors?

     

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    Jay (profile), Jan 5th, 2011 @ 11:16pm

    Re: Re: Re: Re: Re: C'mon.

    *ahem*

    Honorable Margaret Nagle is a "she."

    Not a huge thing but looking at her records, IP law isn't her strong suit.

     

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  37.  
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    Jay (profile), Jan 5th, 2011 @ 11:24pm

    Re: Re: Wanting evidence may lead to finding evidence

    They sure as hell didn't think about that the first they decided on the takedowns in July. Why should they clam up because people are looking to fight the takedowns based on bad faith?

    It truly doesn't make any sense when you gather all of the evidence together like everyone is doing.

     

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  38.  
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    Anonymous, Jan 6th, 2011 @ 12:18am

    Re: Re: Re: Re: Re: C'mon.

    The errors are barely errors, and don't reverse the fact that the sites were full of infringing material.

    You freetards live in a fantasy world.

     

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  39.  
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    Anonymous, Jan 6th, 2011 @ 12:20am

    Re: Re: Re: C'mon.

    what laws did the government break again?

    This site has gone full tilt tin.

     

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    The eejit (profile), Jan 6th, 2011 @ 3:41am

    Re: Re: Re: Re: Re: Re: C'mon.

    So the 'infringing material' that the promotional arms of the big labels put there is a perfectly valid reason to steal someone's livelihood away.

    I'll remember that next time I hear about your rants against 'freetards'.

     

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    The eejit (profile), Jan 6th, 2011 @ 3:47am

    Re: Re: Re: Re: C'mon.

    Um, how about, THE FIRST AMENDMENT? y'know, the biggest reason that America is seen as 'the land of the free'.

    Oh, wait, corporations are people too. Only there's no-one to punish, cause the person doesn't exist, except in paper.

     

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    The eejit (profile), Jan 6th, 2011 @ 3:50am

    Re: The law is for ALL, even Disney

    Heh. America is now the image that springs to mind when I think of Animal Farm.

    Irony? I think so.

     

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    IronM@sk, Jan 6th, 2011 @ 4:54am

    Re: ICE did not issue any seizures, The Court did. you're legal system did.

     

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    Revelati, Jan 6th, 2011 @ 9:41am

    Just another desperate attempt by the WhateverAAs to shore up their bad business practices through government bullying.

    This is simply a fishing expedition to see how far they can get a certain strategy through the courts. When it comes to internet issues there is no precedent to go on, so agencies will come up with "creative" ways to prosecute cases. The legal councils know that this may or may not be legal but since there is virtually no consequence for agencies who break a law and then claim ignorance they do it anyway.

    Law enforcement runs on the mantra of "its better to ask forgiveness than permission." As an added bonus it only takes the "hard glare of the law" to disrupt and ruin a civilians life regardless of conviction, so they still get their man on allegations alone.

     

    reply to this | link to this | view in thread ]

  45.  
    identicon
    Anonymous Coward, Jan 10th, 2011 @ 10:00pm

    Re: ICE did not issue any seizures, The Court did. you're legal system did.

    "by law they are not allowed to comment on an investigation that is before the court."

    Please point this law out to me.

     

    reply to this | link to this | view in thread ]

  46.  
    identicon
    Polly, Apr 16th, 2011 @ 8:28pm

    Re: Re: C'mon.

    Touhcodwn! That's a really cool way of putting it!

     

    reply to this | link to this | view in thread ]


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