Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?
from the questions,-questions... dept
We’ve been writing a lot about the highly questionable seizure of domain names by Homeland Security’s Immigration & Customs Enforcement (ICE) group here over the last couple of months. The deeper you dig, the more ridiculous it gets. If you look over the full affidavit written by ICE special agent Andrew Reynolds, you realize that there are two basic elements to the claim of criminal copyright infringement that justifies the seizure of the domain name: (1) that the site links to a fair amount of content that is deemed infringing and (2) that it “profits” from this in the form of advertising.
There are a variety of problems with this reasoning in general, some of which we discussed in our recent post about the liability for sites (such as Twitter) which users use to post links to infringing content. Of course, the general response to this is that the issue of collecting a large number of such links is evidence of contributory copyright infringement in the form of “inducement.” And this is where things may get tricky for Homeland Security in pushing its claims. In our comments recently there was a very interesting discussion on this issue, highlighting the fact that there is no such thing as criminal copyright inducement.
It starts out with the recognized fact that linking alone is not direct infringement, but could possibly be considered contributory infringement. However, as we’ve pointed out for years, contributory copyright infringement is not found in the Copyright Act but, rather, is something that the courts have more or less made up as they went along, as a form of common law. In fact, a few years back when some in Congress tried to explicitly put “inducement” into the statute with the INDUCE Act, Congress chose not to pass it. Instead, the main support for inducement as copyright infringement comes today from the Grokster decision in the Supreme Court, which explicitly notes that the Copyright Act has no such inducement standard but that it comes from common law principles that were developed around civil copyright infringement. There are serious problems with the Grokster court’s interpretation of contributory copyright infringement, but we’ll ignore that for now and focus on the fact that it really only discussed inducement in civil cases.
In other words, there’s nothing indicating that criminal copyright inducement exists. Yes, the courts have said it’s possible in civil cases, but there’s no such support for making it a crime. It appears that Homeland Security seems to have just made this part up and assumed that such a crime must exist. That seems rather troubling. In fact, in a paper by law professor Mark Batholemew from a couple years ago, he highlights how contributory copyright infringement does not seem to fit with criminal copyright law, if you look at the history of copyright law and the idea of contributory infringement.
The full paper is worth digging into. It goes through the history of contributory infringement in copyrights and patents and, then, compares it to the idea of “accomplice” liability in criminal law (which is, surely, where Homeland Security will claim this made up criminal inducement comes from). Yet, as Bartholomew notes, the situations are quite different:
The analogy between accomplice liability and contributory infringement fails given careful consideration of the reasons behind imposing criminal sanctions on indirect actors. Accountability for accomplices requires a tight nexus between the mental state of the defendant and the ultimate criminal act committed by another. This paradigm cannot be used, however, to structure contributory infringement law given the different theoretical bases for the two secondary liability regimes and the particular evidentiary issues accompanying infringement.
The paper highlights the much higher evidentiary requirements to prove any sort of criminal accomplice liability, rather than typical contributory infringement. Yet, from Homeland Security’s affidavit, it appears no such effort was made to actually reach the evidentiary hurdles for showing probable cause for criminal accomplice liability. Instead, the focus is mainly (though not even sufficiently) on the standards for civil copyright infringement.
That seems like yet another rather big problem for Homeland Security and the Justice Department with these seizures.
Filed Under: contributory infringement, copyright, homeland security, inducement
Comments on “Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?”
Have you considered that it is using copyright violation for profit? It isn’t inducing or leading on, it is building a website with the intent of profiting from people who are breaking the law.
The same site linking only legal torrents would be out of business in a week, as there really isn’t much demand.
Re:
Ah, the ‘BUT…BUT…INFRINGEMENT!’ response. And first to boot!
That’s not the point. There is not yet a criminal contributory infringement standard anywhere, to the best of my knowledge.
For the love of god, won’t someone think of the artists!?!?
Re:
“Have you considered that it is using copyright violation for profit?”
*grumble* Pennies from a click on an ad do not a profit make. Ok, so a few sold counterfeit goods or whatever and didn’t explain that to a customer.
The point is that it’s a little misleading to believe that violating copyright supposedly means this massive revenue stream of money that people are tapping into.
“It isn’t inducing or leading on, it is building a website with the intent of profiting from people who are breaking the law.”
The law isn’t infallible. Bad laws have been passed that have taken DECADES to get off of the books. To say that civil copyright infringement should be changed to harshly curb piracy is like saying I want one big fish by fishing with 4 sticks of dynamite in an aquarium.
Quite frankly, the law on copyright is too far in favor of the industries if they can have a cop make up rules to make the US look like even more of a totalitarian state.
Don’t we have enough of that going around?
Re:
For the love of god, won’t someone think of the “CHILD” artists!?!?
#1 AC
Three brief thoughts on your decerebrate posting:
Lawyers who advertise legal services for people with DUI charges or moving violations aren’t building websites with the intent of profiting from people who break the law? ICE has seized how many of those?
End users make the determination of how an item is used, not the manufacturer or supplier. ICE hasn’t seized any gun manufacturers websites, or car dealers’ websites, even though those items are frequently purchased with the intent of being used in commission of crimes. Why not?
Linking only legal torrents and going out of business doesn’t demonstrate a lack of demand for legal torrents, only a lack of supply.
Suggested readings: Logic and economics. Start with the easy stuff, then work your way up.
Re:
“Have you considered that it is using copyright violation for profit?”
If they were, then instead of involving the Department of Homeland Security and Immigration & Customs Enforcement, the copyright holders should have sued the sites in court as that is the proper place for civil disputes to be decided. This way due process of law would have been followed.
“it is building a website with the intent of profiting from people who are breaking the law.”
Using the same argument, wouldn’t the companies making the systems to catch people running red lights at intersections or speeding on the highway and profiting off them be illegal? What about a pawn shop (some of the goods could have been stolen)? Gun manufacturers (their weapons are used in crimes)? An office supply store who sold equipment to Bernie Madoff? Obviously this is absurd.
The point is this: Assign liability to the actual person who is breaking the law (assuming there is a law and it is being broken) instead of a 3rd party who just happens to be easier to identify.
#1 AC
Lawyers who advertise legal services for people with DUI charges or moving violations aren’t building websites with the intent of profiting from people who break the law?
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.
End users make the determination of how an item is used, not the manufacturer or supplier. ICE hasn’t seized any gun manufacturers websites, or car dealers’ websites, even though those items are frequently purchased with the intent of being used in commission of crimes. Why not?
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.
Linking only legal torrents and going out of business doesn’t demonstrate a lack of demand for legal torrents, only a lack of supply.
Again, logical fail. TD types will remind you that there are all sorts of legal torrents out there. If you read the stories and comments here, you would think that piracy is a very minor problem, a small amount of torrent traffic.
Your statement contradicts that. Are you admitting that most torrent downloaders are looking for illegal content, and that the legal torrents are at best a nice cover up for illegal activity?
Suggested readings: Logic and economics. Start with the easy stuff, then work your way up
You first, you failed on all counts.
It's obvious
Mike Mike Mike… tsk tsk. It clearly shows in Arcara v Cloud Books that you’re just plain wrong.
Sorry guys… had to do it.
Oh wait! I almost forgot…
~ahem~ LOL
#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.
#1 AC
Art is free, man. It’s, like, the 21st century, man. Chill it out with your negativity vibes! You’re worse than my old man, old man. If you were polygonal shape you would totally, like, be a square, man!
It's obvious
And now I hate you….
#1 AC
“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 a site that was not giving out anything illegal would not have gotten caught up this this? Explain why Dajaz1 was.
“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.”
No matter how much you wish it, blogs and websites that allow users to post links or content are not illegal.
“Again, logical fail. TD types will remind you that there are all sorts of legal torrents out there. If you read the stories and comments here, you would think that piracy is a very minor problem, a small amount of torrent traffic.”
I doubt very much that anyone regularly posting on TechDirt has said exactly that. You’re setting up a strawman.
Is most of of torrent traffic unauthorized by the copyright holder? Very probably it is.
Is piracy a very minor problem? Actually, piracy is no problem at all. Obsolete business models and the refusal to adapt to the changing market is the problem.
#1 AC
“They are no shipping out cases of beer or giving away free beer bongs to get people drunk. Analogy fail.”
Your analogy fails here. A website that links to torrents that allow for the unauthorized copying of copyrighted material and that has advertising on the site is not the same as giving away free beer with the intent to get drivers drunk. It’s more like standing next to your billboard while you point out the direction of a place where they can consume beer and then choose to drive after getting drunk. Linking is not providing. (Barely) Profiting off of providing the equivalent of directions on a map where a person may choose to commit a civil violation is not criminal.
Or else we should shut down Taco Bell since the fact that many of their locations stay open after midnight provides an incentive for drunk people to drive to their locations. They’re profiting off of people who are breaking the law, by your argument.
That seems like yet another rather big problem for Homeland Security and the Justice Department with these seizures.
It’s only a problem if Homeland Security and the Justice Department are concerned with following the law, which they don’t seem to be.
It's obvious
I know you’re being sarcastic, but you’re absolutely right. Didn’t you read the key part of the ruling in Arcara v Cloud?
“Also, the court affirms that Michael Masnick and all content published on Techdirt.com is to be considered incorrect, and asserts that it is the duty of every good citizen to point this out using the poorest grammar possible.”
(It’s in there – just towards the bottom, and also only in the imaginations of IP maximalists)
Interesting...
In other words, there’s nothing indicating that criminal copyright inducement exists. Yes, the courts have said it’s possible in civil cases, but there’s no such support for making it a crime.
Accomplice liability is basic to criminal law,. One who “induces” a crime is “punishable as a principal” under 18 U.S.C. 2:
I don’t think the affidavit is painting torrent-finder as an accomplice though. I think the agent is arguing that torrent-finder is the direct infringer, not the accomplice.
Criminal infringement is defined under 17 U.S.C. 506(a):
The affidavit explains how the agent downloaded a movie called “The Town” using torrent-finder. He says he was able to download the torrent file for the movie “from a bit Torrent site” that was displayed in a frame “on the Torrent Finder website.” He then goes on to show that “The Town” is copyrighted and the file he downloaded was verified to be pirated. The agent also shows that torrent-finder exists for commercial advantage.
And all of this evidence purports to meet the requirements of criminal infringement under 506(a). But does it, really? I’m torn at the moment.
Damn you, Masnick. 😉
I think torrent-finder is potentially guilty of criminal infringement on an accomplice theory, but that’s not what the affidavit alleges.
Learn the difference between civil and criminal law, then see it makes no difference. !!
Wikipedia
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim. For instance, if a car crash victim claims damages against the driver for loss or injury sustained in an accident, this will be a civil law case
So you see what civil law is, it’s law relating to disputes between individuals and/or organizations, in which compensation may be awarded to the victum.
The is the simple, and correct definition of civil law.
Criminal law, or penal law, is the body of rules that defines conduct which is prohibited by the state because it is held to threaten, harm or otherwise endanger the safety and welfare of the public, and that sets out the punishment to be imposed on those who breach these laws. Criminal law is enforced by the state, unlike the civil law which may be enforced by private parties.
So really (apart from burden of proof) the difference between criminal law, and civil law is that one is the set of law set out to protect the public, and is enforced by the state.
And the other is a set of law’s, set out to protect individuals, and/or companies. Where compensation may be required to be paid.
All the basic legal precepts of the two branches of law are the same, the only real difference is in the specific type of law that is broken, if its a law that effects the public safty, or if it is law that protects individuals, or companies/groups.
Mike, why do you try to confuse your readers with information that you know to be misleading ?, finding legal loopholes AFTER the Courts have ruled, and guilt/innocence has allready been determined.
And to try to claim that they were not willingly using those links to gain money and to assist in illegal activities is a bit of a joke right ? after all the court did not find that to be the case, the court and judge ruled that ICE’s actions were valid and legal, and it was the court who issued the seizures not ICE.
IF the court determines something is valid and legal, unless you are willing to take it to a higher court, who may find the same way. then it is LEGAL, and nothing you say or do will change the fact, that the court found the process legal, and therefore took the appropriate action, on behalf of ICE.
If the court felt as you did Mike, that correct legal proceedings were not undertaken, then the court would have rejected the request for court action, and the seizures.
Just saying things, Mike, no matter how many times you do it, does not make what you say anymore true than the first time you said it.
We are all aware you have to be an apoligist for the illegal file sharers, but you should not have to display ignorance to do that.
Re:
Certainly didn’t stop them at Waco or Ruby ridge. The government is above the law silly.
It's obvious
win
It's obvious
Scratch that… this is win!
Learn the difference between civil and criminal law, then see it makes no difference. !!
Ignoring the rest of your rant, you bring up a good point, and that is:
Why is this a criminal matter at all (at least in the case of music blogs and torrent websites)? Where is the harm to the public in file sharing? Really seems like more of a civil dispute according to those wiki-definitions you’re throwing out.
Interesting...
Everytime I start thinking you really just want to disagree with Mike, you make a post like this that show you’re actually relatively fair-minded.
Damn you, AJ. 😉
In all honesty, this is the kind of comment from a most-often dissenter that is in the spirit of the New Year optimism post.
Bravo.
Learn the difference between civil and criminal law, then see it makes no difference. !!
finding legal loopholes AFTER the Courts have ruled, and guilt/innocence has allready been determined.
Hahahaha, hahahahaha…. hahahaha… oh Darryl. You are too much. You are really just going to try to slip that in there? Guilt/innocence has NOT already been determined. Do you really not understand the difference between a warrant and a trial?
Probably not criminal
Two things to consider.
First: 17 USC 512(d) excuses “Information Location Tools” from any liability whatsoever, under certain circumstances (namely, that they had no direct knowledge the link was infringing, and took it down when notified). According to the affidavit, there was no effort by Agent Reynolds to determine if that was the case.
Second: according to a DOJ bulletin called Novel Criminal Copyright Infringement Issues Related to the Internet:
In other words, according to the DOJ, there is no such thing as criminal contributory infringement. There is “aiding and abetting,” however – but that is a lot harder to prove. From the Criminal Resource Manual, 2478:
Hence, the “if at all” caveat in the bulletin above. Even the DOJ believes that contributory infringement should generally be handled in civil courts.
Though this doesn’t deal specifically with “criminal contributory infringement,” there is one other thing to consider. Even though Agent Reynolds calls redirecting the domains a “seizure,” it’s really not. Legally speaking, this is an “injunction.” The rules about issuing injunctions in 17 USC 512(j) clearly state that you can issue injunctions only against specific user accounts, or access to specific infringing materials. A blanket injunction against an entire website is not allowed.
Re:
Of course it’s point. It’s the only reason it’s being discussed.
The Supreme Court has already ruled on this. Nothing will change that, so this article is, as usual, nothing but FUD.
#1 AC
Actually, piracy is no problem at all.
LOL
The delusional thinking here just gets more crazy every day…
Re:
The Supreme Court has already ruled on this. Nothing will change that, so this article is, as usual, nothing but FUD.
Gee, who am I going to believe: Mike who actually provides links and evidence to back up his assertions, or some AC who just says “The Supreme Court said so”?
Re:
That’s not just some AC… that’s Mr Anonymous himself. You can note that by the fact that, yet again, he offers up no evidence to back up his statements… as you so noted.
But he’s not just saying “because the Supreme Court says so”… he’s saying “Because I say the Supreme Court says so”; which is both a signature of his and more silly than just saying ?the Supreme Court says so?.
#1 AC
The delusional thinking here just gets more crazy every day…
Says the delusional person who keeps thinking that piracy is able to be stopped.
#1 AC
And the hypocrisy of you saying that gets crazier as well.
Oh… sorry… ~LOL~
#1 AC
So, it should be easy to post some links to stats showing that “piracy” is a problem?
I dare you. I double dog dare you, to post something that’s not RIAA-figure based to prove this.
#1 AC
Says the Squareman!
#1 AC
oh yes, please throw out the RIAA boogeyman again… Snore.
Recorded music sales are less than half what they were in 1999.
Being willfully ignorant that piracy hasn’t been the major reason for that is just funny. But keep trying…
Interesting...
Torrent-finder has examples of both direct and contributory infringement on their site. Go look Joe, and tell me you don’t see that.
Reynolds outlined what he did to satisfy probable cause; he wasn’t writing a brief.
#1 AC
Remember when vaudeville was the money-maker?
Re:
Pretending the Grokster, Limewire and Napster cases never happened?
Good luck with that.
#1 AC
You’re almost there…just give a citation….oh, no. Okay.
Re:
Pretending that reality isn’t happening? Good luck!
Re:
Ever read the Supreme Court ruling on Dred Scott?
#1 AC
I’m sorry, what?
“Being willfully ignorant that piracy hasn’t been the major reason for that is just funny.”
So if being willfully ignorant that consumer interests have changed. Oh, and that each pirated copy does not equal a lost sale. Oh and the fact that “piracy” as you term it, has been occurring (perhaps even in amounts you would assert today) since recording 8-track and cassette tapes became economical. I can remember having a huge library of both purchased and cassette-recorded music.
So… your assertion addresses those points how?
Interesting...
It occurred to me the first time I read the Torrent Finder Affidavit that this is WHY the agent specifically limited his searches to “cams.” He knew that it would give him the lowest burden of proof.
Interesting...
Yeah, he’s kind of bipolar. Very recently, he seems to have been making actual points that are backed up by actual logic and evidence, rather than simply attacking those who disagree. Gives me hope for the future of intelligent discussion here, actually.
Now, if only a certain AC and a certain Anonymous would follow suit, and we could all learn from some intelligent debate…
#1 AC
Still no links to a non-industry-association!
I’m beginning to suspect you have nothing to back up your assertions.
But let’s press on, what does “Recorded music sales are less than half what they were in 1999” mean? Is that dollar sales? Gross or net revenue? Units sold? In what format, vinyl LP, 8-track, cassette tape, reel-to-real, CD? Citation via URL is acceptable, but maybe not an RIAA figure.
I’ll press on even further despite the lack of factual support.
If it’s dollar sales that have fallen, shouldn’t we expect a drop in dollar sales? Basic free market econ, taught in high school, says that the price of a good in a competitive market falls to the marginal cost of production. Apparently “music” is a pretty competitive industry, so I’d expect sales to fall, given the rapid advances in technology. Cost per copy of a “.iso” file should be nearly zero. Cost per CD is small versus cost per vinyl LP album. Even the packaging is smaller, so it should cost less too, as well as being “greener”. I need some facts to make this judgement.
If it’s units sold of albums, then we should look at when the drop off occurred. If it occurred when iTunes came around, then there’s no mystery: people buy the single songs they want, not albums that contain one or two hits and then a messy wad of obvious filler. Again, we need some facts to make this judgement intelligently. We’re citizens after all, not “consumers” and not “subjects”. A graph showing units sold of albums vs units sold of singles, two numbers per month, would be helpful.
Or does it have to do with CD sales falling when people re-purchased all the music they had on vinyl? That’s got to have been a factor for 5 or 10 years, maybe. I imagine you could see this in some kind of graph of sales of albums recorded before, say, 1990 over time, one number per month or somesuch. Thinking specifically of say, David Bowie’s “Ziggie Stardust” album, one would expect to see a spike when it was released, a spike when the Sony walkman was released (repurchase in cassette form) and a longer uptick when CDs of it were released (repurchase in CD form). Without this correlation, I don’t see how I can believe you.
Re:
Pretending the Grokster, Limewire and Napster cases never happened?
Pretending that a single one of those were criminal cases?
Good luck with that.
#1 AC
Recorded music sales are less than half what they were in 1999.
More music purchases were made in 2009 than in any year in history. They just weren’t CD purchases.
Being willfully ignorant that piracy hasn’t been the major reason for that is just funny.
There are a bunch of reasons CD sales have fallen: they’re old technology, they’re expensive compared to iTunes, you can’t get them immediately, etc. Kent Hunt at the Globe and Mail said it well:
Follow the smell
If it smells like politics… Government seizure or closure of sites for intellecural property/alleged copyright infringement at any time is unfortunately politically driven. This isn’t a random sampling of sites that potentially violate copyright, it’s targeted and deliberate.
If it snorts like a pig…
Re:
When did gov say criminal forfeiture was being used and not civil forfeiture?
They didn’t. Nice try at the straw man, tho.
Some of us were format shifting in the 70s.
I was format shifting in the 70s and recording stuff off of radio too. This stuff is nothing new. It’s just a lot more visible.
This gives creative types and middlemen and inflated notion of “property” values.
Probably not criminal
Karl, don’t forget there is also criminal conspiracy (or even Rico) that could be applied if this is considered part of a criminal enterprise. The big question will be the relationships between various parties, and if they were working in concert to benefit from criminal activity.
Much of it comes down to intent: Did they intend to profit from illegal material knowingly?
Since we do not know the scope of the investigation, and we do not know all of the players involved, we don’t know the answers. The rest is speculation at it’s finest (including my post here)
#1 AC
Who the fuck else would keep sales figures for recorded music sales besides a music industry association, Einstein?
Just more willful ignorance hilarity.
Probably not criminal
We do know:
? The domain name registrants were provided neither notice of the charges, nor the opportunity for an adversial hearing prior to the seizure of the domain names.
? Domain names must be considered expression?unless you want to rewrite trademark law and ignore common sense.
? The domain names were not seized on the basis that they directly infringe.
? Instead, the domain names were seized to achieve a collateral effect on other expressive activity.
? Neither notice of the charges, nor the opportunity for an adversial hearing was provided to the registrants immediately following the seizures.
#1 AC
Who the fuck else would keep sales figures for recorded music sales besides a music industry association, Einstein?
You can’t show losses due to piracy merely through sales figures.
For example. Until recently, my day job was in the print industry (I printed plans for architects and subcontractors). That industry is in the toilet – and it’s mostly digital distribution that is to blame.
But guess how much of those industry losses are due to piracy? None. We were simply a middleman who printed information onto physical media (blueprints), which was then shipped to clients.
Just like the recording industry.
Interesting...
The affidavit explains how the agent downloaded a movie called “The Town” using torrent-finder. He says he was able to download the torrent file for the movie “from a bit Torrent site” that was displayed in a frame “on the Torrent Finder website.” He then goes on to show that “The Town” is copyrighted and the file he downloaded was verified to be pirated.
He verified that it was actually “The Town.” But that’s not the same as verifying that it was pirated.
In order to verify that it was pirated, he would actually have to contact the copyright holders for “The Town” and verify that the site was not authorized to distribute it. As far as I can tell, he did not do this. (For that matter, which site would he ask about? If it’s authorized on Mininova, for example, and torrent-finder displays Mininova’s results, is torrent-finder infringing?)
He certainly didn’t do that in the “dajaz1” case. Every one of the files he claimed were “pirated” were authorized – they were sent in by representatives of the copyright holders.
Furthermore, if we’re talking only about torrent-finder, they are clearly an “Information Location Tool,” thus fall under the protection of 17 USC 512(d), with injunctions being strictly limited under 17 USC 512(d).
There’s also a real question about whether torrent-finder even has the ability to prevent “access to infringing material or activity residing at a particular online site on the provider?s system or network.” I don’t know how the site actually works, but it’s entirely possible that even links to sites are not held on their network, but generated “on the fly” by querying the third-party sites themselves (or another third-party search engine, such as Google). I also don’t know if the torrent sites do this, but nowadays, almost every “data-heavy” site has some sort of API, where you can query the data from somewhere else (using REST or JSON) and the sites give you the results back, without the querying site having any knowledge about the data whatsoever. Google, at least, definitely allows this.
(If you’re wondering why I know all of this, I wrote a module for Drupal that does exactly that with Discogs.com’s API. If some material on Discogs – an album cover, say – is found to be infringing, I sure hope I can’t be arrested.)
If that’s the case, it’s conceivable that torrent-finder’s results might be considered “Transitory Digital Network Communications,” thus exempt from liability under 17 USC 512(a). Not likely, mind you, but conceivable.
Interesting...
injunctions being strictly limited under 17 USC 512(d).
Um, that should read 17 USC 512(j). The link is correct, though.
Follow the smell
Government seizure or closure of sites for intellecural property/alleged copyright infringement at any time is unfortunately politically driven.
Actually, that’s not true. It’s largely driven by big media, which is politically neutral. Both parties bend over backwards for Hollywood interests. Sadly.
Probably not criminal
Karl, don’t forget there is also criminal conspiracy (or even Rico) that could be applied if this is considered part of a criminal enterprise.
I find that incredibly unlikely. Something similar was tried in Fort Wayne Books v. Indiana, and it was pretty much slapped down in the courts.
It could happen with the counterfeiting sites, but I doubt very much that torrent-finder or the music blogs would get convicted (and I have doubts they’ll even be charged, with RICO or anything else).
Some of us were format shifting in the 70s.
This gives creative types and middlemen
Don’t blame “creative types” for this. Most of us don’t care if you pirate our stuff or not, as long as you support us somehow (come to the show, buy a T-shirt, let us stay at your house while touring, or whatever).
Re:
When did gov say criminal forfeiture was being used and not civil forfeiture?
You’re confusing “civil cases” (tort law) with “civil forfeiture” (which is a part of criminal law). Nice try at a straw man, tho.
Interesting...
I think torrent-finder is potentially guilty of criminal infringement on an accomplice theory, but that’s not what the affidavit alleges.
Sorry, one more thing. I said this below, but I thought I’d reiterate this.
Proving that one is a criminal accomplice is very hard. For one thing, you have to prove that the “accomplice” knew that the activity is criminal. For another thing, they would have to take an active, participatory role in the criminal activity.
Merely having knowledge of the activity is not enough. Mere knowledge that the activity might be criminal is not enough. Mere participation in the activity is not enough.
Not only did torrent-finder not directly infringe, the sites they linked to did not directly infringe. It’s conceivable (though not likely) that the sites that torrent-finder linked to might be guilty of “aiding and abetting.” It’s almost impossible that torrent-finder themselves would be guilty.
Re:
The same site linking only legal torrents would be out of business in a week, as there really isn’t much demand.
I really hope not, because I’d like to create such a site one day.
Re:
I’m not confusing anything, and you know it. This was a case of civil forfeiture.
Re:
This is why Masnick’s article is so retarded. Where has it been deemed a criminal case?
Re:
Pennies from a click on an ad do not a profit make.
Bzzt. Fail!
Are these sites registered as non-profits? Nope. The law doesn’t care whether you got rich or made little, only that a profit making mechanism is present.
Re:
Where has it been deemed a criminal case?
Are you really that dense?
Criminal law and tort law are fundamentally different. At the most basic level, in criminal cases the plaintiff is the government, and in civil cases the plaintiff is a private party. Law enforcement agencies cannot initiate civil cases.
The mere fact that DHS (a government agency) brought the charges means that the defendants are being charged in a criminal court.
The fact that “civil forfeiture” has “civil” in the name does not mean that these are tort cases. Civil forfeiture is most often used in drug cases – which are entirely criminal.
All of the big file sharing cases (Napster, Grokster, etc) were tort cases. The government was not a party in any of those cases; no law enforcement agencies were involved.
#1 AC
Your industry went in the toilet because of the legal use of a new technology. Something that happens regularly. Not illegal activity.
What a ridiculous analogy.
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The law doesn’t care whether you got rich or made little, only that a profit making mechanism is present.
On the other hand, the law cares a great deal how you made that income. Making a profit by providing a service to users, does not mean that you’re directly profiting from piracy, even if those users use your service to pirate.
Typing “filetype:torrent” into Google (or Bing, Yahoo, whatever) will lead you to a bunch of torrent files, many of which are infringing. That doesn’t mean they’re “profiting from infringement.” They’re profiting from being a search engine. What the users search for doesn’t really matter.
Interesting...
Torrent-finder having a header that says “high speed downloads” and then links to pirated content is direct infringement. Whether the link takes you to their server somewhere, or someone else’s server somewhere, it would still qualify as direct infringement because they are not identifying it as anyone else’s but their own.
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Criminal law and tort law are fundamentally different.
Here are two more differences.
In tort cases, you can only sue for damages and/or injunctions. But you will not serve jail time. Prison sentences are reserved for criminal cases.
And the standard of proof for criminal cases is much higher than the standard for tort cases. “Innocent until proven guilty” is part of criminal law, not tort law. Just look at O.J. Simpson. Even his laughable defense was enough to clear him of criminal charges. But he was also sued in civil court – where he lost.
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Whether the link takes you to their server somewhere, or someone else’s server somewhere, it would still qualify as direct infringement because they are not identifying it as anyone else’s but their own.
That’s not what the law says at all. If you were right, 17 USC 512 would not even exist.
And torrent-finder did not identify it as their own. They opened up another site’s webpage, complete with that website’s “branding.” Anyone who spent even five minutes on torrent-finder should realize that they’re no different than Google or Bing.
#1 AC
Your industry went in the toilet because of the legal use of a new technology.
The print industry went in the toilet because the product it provided was no longer necessary.
Exactly like CD’s.
And if you ignore CD sales then, again, the amount of legitimate music purchases has gone up, not down. The labels simply aren’t making nearly as much money on the new legitimate purchases.
Interesting...
Maybe Reynolds should have written a brief instead of hiding his head in his briefs. I’m sorry, but a complete and utter lack of technical knowledge is not excusable when it comes to prior restraint and unless the judges stamp says “WTF?” it shouldn’t be used blindly… though the blind use of a WTF stamp would make law a bit more amusing.
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The mere fact that DHS (a government agency) brought the charges means that the defendants are being charged in a criminal court.
ahahahahahahahahaha
what an idiot.
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what an idiot.
Nice. Ignore the fact that everything I’ve told you is true according to U.S. law, and commence with snarky ad hominum dismissals.
No, a government agency cannot instigate a tort case. They can only instigate criminal cases. This is a basic fact of law.
I’m eager to see you cite any laws or cases that even suggest I’m wrong. You won’t find any. That’s because you have no idea what you’re talking about.
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You poor, sad, pathetic person.
We’ve been over the Google analogy before, haven’t we Karl?
Go type in ‘burger recipes’ at Torrent-Finder, and tell me “it’s really just like Google!”
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He’s not bipolar, but you might want to ask him if he’s still actually in law school…
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I’m not confusing anything, and you know it. This was a case of civil forfeiture.
You appear to be confused. “Civil Forfeiture” does not mean it’s a civil case. Civil forfeiture is only used in criminal cases. I recognize the language can be confusing, but getting such things wrong does not make you look credible.
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Torrent-finder having a header that says “high speed downloads” and then links to pirated content is direct infringement.
This is incorrect as a matter of law. In fact, if you read the case law, they’re quite clear that linking is not direct infringement (the direct infringement would be done by the person actually downloading and or hosting the actual content). The link alone is, if anything, indirect infringement.
Whether the link takes you to their server somewhere, or someone else’s server somewhere, it would still qualify as direct infringement because they are not identifying it as anyone else’s but their own.
I don’t know of a single case that supports this view. Can you name a single one?
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In order to verify that it was pirated, he would actually have to contact the copyright holders for “The Town” and verify that the site was not authorized to distribute it.
pathetic.
From the ICE affidavit:
“On or about October 28, 2010, MPAA representatives examined a copy of The Town movie file that I obtained via TORRENT-FINDER.COM. I was informed by MPAA investigator Radziewicz that The Town movie file was an unauthorized release of the movie The Town”
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Classy, as ever.
You’re yet to explain why a search engine that searches a specific type of file, which is not infringing in its nature, should be treated differently from an engine that searches all file types. The distinction only works if you assume that torrents are always infringing, which is an idiotic assumption.
I can’t access torrent sites since I’m at work, but Google returns 238 results with the search “filetype:torrent burger recipes”, some clearly infringing, others not. Does that make them more or less infringing if torrent finder returns the same number of results with the same search?
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Sorry Masnick, it’s not just a link.
The “high speed downloads” header is their (and your) downfall.
Go ask your “lawyers”.
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I believe they’re citing the case of Loser vs. Weepers.
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Sorry, but on that site, Torrent-Finder, and Torrent-Finder alone, present this: “High Speed Downloads“, and then access to infringing content.
With regard to their culpability, at that point, how the server traffic is routed becomes irrelevant.
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If you were right, 17 USC 512 would not even exist.
good lord you’re a basket of fail today…
That title bases itself around the site (service provider) being unaware of illegal activity. Willful blindness does not apply, sorry.
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Civil forfeiture is only used in criminal cases.
No, it’s not. Are you on drugs? Serious question.
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I quoted what you said and it’s wrong.
You’re an idiot.
And a coward for not admitting you fucked up.
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“I quoted what you said and it’s wrong.”
I’m sure Karl will appreciate your upcoming explanation of why he’s wrong. Perhaps he can discuss your obviously superior knowledge of the law, and re-evaluate his worldview based on this new information.
“You’re an idiot.
And a coward for not admitting you fucked up.”
Ah. Why do you bother? No wonder you can’t sell music if this is how you conduct yourself, even with fellow artists.
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Have you considered that it is using copyright violation for profit?
Sure and like all the other bullsh!t put out by these ilk it’s a total lie. Given the amount of traffic these sites get they barely break even and invest all in faster/better hardware, bandwidth.
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Who has been charged with What in What court?
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Wait… really? That’s the best you can do? Someone cites knowledge of the law to show how you’re mistaken and you respond with “what an idiot”? Without even trying to prove how he’s an idiot by pointing out his errors?
You know… for the longest time, I thought you were just so adversarial that you refused to even acknowledge the possibility that someone else might be right. But now I see that you’re just a childish asshole. I don’t know how to make this any clearer, but I’ll try:
You. Are. Wrong.
Looks like you’re the one too cowardly to admit when you fucked up. Troll on douche, troll on.
#1 AC
Hmm… bad language and insults… maybe if we keep pushing, his head will explode and we’ll be left in peace.
Who else would keep sales figures? You’re right; no one. But the analysis of those figures by an independent third party is what he was asking for.
Whose analysis of Al Capone’s books do you think would be more accurate and less biased (and, honestly, more honest): a non-interested accountant or Al Capone’s accountant? Same with the RIAA. They want to show how bad things were, so they creatively gave the data to back that stance up. There have been many articles (again, by 3rd parties) that show how the reports the RIAA gave were just plain wrong. You know… “wrong”… much like yourself.
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And yet you fail to answer the chalange for providing proof of what you say. Nice.
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That is the part of the affidavit I was referring to when I said they verified that it was pirated. Thanks.
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Wow… all this time, I thought you were just being disingenuous and contrary, but now I realize you actually are as clueless as you sound. After all this, all this damn debate that’s been going on, you still don’t even understand the difference between civil and criminal?
That’s… wow… I mean really. Wow!
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Torrent-finder has examples of both direct and contributory infringement on their site. Go look Joe, and tell me you don’t see that.
I read it again just yesterday. Show me where the agent says that torrent-finder is an accomplice. I didn’t see it. And if they are an accomplice, who is the principal? The agent said nothing of the sort that I could see.
Of course it’s a crime. Disney told them it was. What higher source do you want?
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The high speed downloads header also contained under it links to Linux distributions when I checked the site.
It’s an automatically generated list that regularly cycles/changes what appears there.
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I quoted what you said and it’s wrong.
Perhaps I phrased it badly, but it’s not wrong. The fact that law enforcement is investigating means that the charges must necessarily be criminal in nature. Law enforcement agencies cannot investigate purely civil law violations.
Here’s another explanation from attorney Ronald Standler. And another from attorney Gary C. Johnson. And another one from LawInfo. And another on diffen.com. All agree with me.
I’m still waiting for you to give me even one citation that even suggests I’m wrong.
Otherwise, I’ll just assume that you’re an idiot, and a coward for not admitting you fucked up.
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Who has been charged with What in What court?
Sorry, I phrased it badly. Obviously I meant that since DHS is going to be the one bringing charges, they must be criminal charges.
And I’m still right about that.
You’re still wrong about everything else… and you haven’t admitted it. I guess, by your own standards, you’re a coward and an idiot.
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No, it’s not. Are you on drugs? Serious question.
Wrong, and no.
Civil forfeiture is used on the assumption that the property itself is criminal (e.g. drugs), or was obtained through violating criminal laws (e.g. seizing money from drug dealers).
But if your neighbor slips and falls on your sidewalk, that doesn’t mean he can call the police and have them seize your house.
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That is the part of the affidavit I was referring to when I said they verified that it was pirated.
And I guess I missed it. My apologies.
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That title bases itself around the site (service provider) being unaware of illegal activity.
Not all of it. The section covers a lot of different types of online entities, and some of them (“Transitory Digital Network Communications”, “System Caching”, “Nonprofit Educational Institutions”) don’t need to meet this requirement. I made a case, above, that it’s possible torrent-finder’s results should be considered a “Transitory Digital Network Communications,” but I doubt it would hold up in court.
It’s also clear that torrent-finder did not have “actual knowledge” of infringement (512(d)(1)(A)). But, does the mere fact that users search for torrent files mean torrent-finder is “aware of facts or circumstances from which infringing activity is apparent” (512(d)(1)(B))?
I certainly hope not – because it would apply to every search engine that allows you to search for torrent files. Including – as you keep ignoring – Google and Bing.
And none of this points to torrent-finder being guilty of criminal infringement, which is the only case where law enforcement should get involved.
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The government files civil cases all the time. That is exactly what they are doing here. And that’s why Masnick’s lark about “criminal” copyright infringement is just that. This is not a criminal law case and it isn’t going to be one.
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Sorry Masnick, it’s not just a link.
The “high speed downloads” header is their (and your) downfall.
How does putting “high speed downloads” above a link suddenly make it not a link?
Part of the appeal of using torrents is that you can get the file quicker than you could with a direct download. “High speed downloads” only implies you’re using the BitTorrent protocol – which isn’t in dispute.
But since using the BitTorrent protocol is not itself criminal, and searching for torrent files is not itself criminal, I fail to see why torrent-finder is guilty of criminal activity.
They could probably be found guilty of contributory infringement under tort law. But there’s no way they should be considered a principal. (For example: none of the big file sharing sites – Napster, Grokster, etc – were considered principal infringers. All were contributory or vicarious infringers.)
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The government files civil cases all the time.
Name one.
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Actually, I take that back.
The government does occasionally file civil case, with itself as a plaintiff. But this only happens in cases where the harm was caused to the government’s property.
The most recent example is the government filing a civil suit against BP. But it’s suing BP on behalf of the damage caused to federal property, not on behalf of the other defendants.
In order for the government to sue torrent-finder, the infringement must be against copyrights that are held by the government. That is not even alleged in the affidavit.
These are not civil cases.
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Wrong yet again. You really need to just stop this foolish exercise.
http://world-countries.net/archives/60252
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Wrong yet again.
The SEC is bringing a civil suit against the Wyly’s, but it’s for violating criminal laws.
In any case, fraud is very, very different than copyright law.
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“”High speed downloads” only implies you’re using the BitTorrent protocol – which isn’t in dispute.”
To be fair, if you click on any of those links, they’re not torrents. They all take you to a site named usenet.nl, which implies they’re newsgroup binary downloads rather than torrents (I can’t confirm this as it’s a subscription site).
That still doesn’t explain how they’re suddenly not links, of course, nor does it explain why torrent finder should be liable for them. The links suggest it’s an automatically generated list from a 3rd party site over which torrent finder have no direct influence – an incredibly dangerous thing to start prosecuting.
To be fair, if you click on any of those links, they’re not torrents.
Ah, that’s what they do. I use Firefox with AdBlocker, and (I assume because of that) the pages that attempted to load were completely blank.
However, I know about lots of web development platforms (e.g. Ruby or Cake PHP), so I can gather that the URL was simply a “pointer” to data. For example: “http://www.torrent-finder.com/batman” would simply point to a search for “Batman,” without torrent-finder itself having any info about “batman.”
One other thing I discovered. When you go to the main torrent-finder page, it presents you with a list of “torrent search engines” that it can query.
Towards the middle of the page is “Google.”
This basically disproves all the idiots who say Google is exempt from this sort of infringement.