Feds Really Do Seem To Think That Linking To Infringing Content Can Be A Jailable Offense

from the are-they-serious? dept

Last week we covered the somewhat surprising arrest of Brian McCarthy, the operator of Channelsurfing.net, on charges of criminal copyright infringement. As we noted at the time, this seemed like a pretty questionable charge. I could potentially see a civil charge against him using the court-created concept of "inducing" infringement (a concept that Congress rejected...), but there is no inducement standard in criminal infringement. It's possible that the feds could go with an aiding and abetting charge, but that requires a much higher standard, and it's not clear that the feds have enough to make such a claim really stick. At the time, we didn't have the complaint, but the folks at DemandProgress have obtained a copy of the complaint, which we've also embedded below.

There doesn't seem to be anything there. In fact, the complaint against McCarthy seems to mostly be copied and pasted from the original affidavit used to seize Channelsurfing.net. As we pointed out at the time, that affidavit relies on the extremely questionable claim that merely linking to infringing content can represent criminal infringement. As Demand Progress notes, letting Homeland Security and the Justice Department claim that linking to or embedding content can be a criminal act should be horrifying to anyone who understands the very basics of how the internet works. Once again: they're not claiming that McCarthy made any copies. They're not claiming he distributed any copies.

Section 106 of the Copyright Act covers the six exclusive rights that copyright is supposed to provide. I can't see how McCarthy violated any of these. He did not reproduce the works. He did not prepare derivative works. He did not distribute the works. He did not perform the works. He did not display the works. At best, I'm guessing people who don't actually understand the technical issues will try to claim he displayed the works. But that's technically incorrect. No where on his server did he have or display any of these works. Instead, he pointed people to where the works were available. Some of his users may have seen displays of the works, but those were from their own browsers calling to entirely separate servers for those works.

So, as expected, the specific charges are incredibly questionable and seem to be based on a theory of copyright law that has been completely made up by Homeland Security and the Justice Department. That's kind of scary.

Homeland Security and the Justice Department clearly have gone way overboard here. Beyond the basic questions about the domain seizures (due process and First Amendment), now there are additional questions about them simply making up what they want copyright law to say, rather than what it actually does say. And when that leads to a conclusion that linking can be a jailable offense, it's time for them to seriously rethink their actions.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Hephaestus (profile), Mar 9th, 2011 @ 7:47am

    I really do not mind them doing this ....

    The phrase "give them enough rope to hang themselves with" comes to mind. Between their delaying actions in releasing information, procedural issues, domain seizures (prior restraint) of 84,000 non related sites, and constitutional violations (1st,4th, and 14th). The longer they drag this out, the more they will screw up, and the harder they will be slapped down in the end.

     

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      Rose M. Welch (profile), Mar 9th, 2011 @ 8:55am

      Re: I really do not mind them doing this ....

      ...and the harder they will be slapped down in the end.

      God, I hope so. :/

       

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        xs (profile), Mar 9th, 2011 @ 9:33am

        Re: Re: I really do not mind them doing this ....

        Somehow I doubt it. Would any President and Congress have enough spine to admit in the haste to deal with terrorist, the government has created a monster infinitely more damaging to the foundation of this country? If they can't do that, they can't stop Homeland security from over reaching. Chalking up each violation of constitution as isolated incident won't be much of a deterrent.

         

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        Hephaestus (profile), Mar 9th, 2011 @ 9:44am

        Re: Re: I really do not mind them doing this ....

        They are pushing to the point where something has to give. It seems to be endemic of all elected officials, government organizations, and large corporations recently. Ignoring the rules and laws, the will of the populace, and doing it in a blatant way. All the while thinking that the evening news will cover it all up by shouting louder than the bloggers and networks people have set up.

        As this example from australia shows, the news doesn't work any more. Read the comments they are better than the article itself.

         

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        •  
          identicon
          Anonymous Coward, Mar 9th, 2011 @ 10:37am

          Re: Re: Re: I really do not mind them doing this ....

          People have a natural ability to detect fraud. It's in our best interest to have such an ability. Our IP system is built and justified on fraud and people are picking up on it.

           

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            DH's Love Child (profile), Mar 9th, 2011 @ 12:29pm

            Re: Re: Re: Re: I really do not mind them doing this ....

            People have a natural ability to detect fraud. It's in our best interest to have such an ability. Our IP system is built and justified on fraud and people are picking up on it.

            BWAHAHAHAHAHA!!! Oh you're serious?

            If people have a natural ability to detect fraud, why do 504 scams, and Bernie Madhoff work so well?

             

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              Hephaestus (profile), Mar 9th, 2011 @ 1:05pm

              Re: Re: Re: Re: Re: I really do not mind them doing this ....

              Perhaps the AC meant ... People have the ability to detect Bull sh!t, when its heaped on often enough, and high enough.

               

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        •  
          identicon
          Anonymous Coward, Mar 9th, 2011 @ 10:46am

          Re: Re: Re: I really do not mind them doing this ....

          From your link

          "Nation of unrepentant pirates costs $900m "

          $900 million? Chump change. The govt wastes that in no time.

          The trick is for the industry to come up with a number that's big enough for people to care but not too big for them to believe.

           

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            Hephaestus (profile), Mar 9th, 2011 @ 1:08pm

            Re: Re: Re: Re: I really do not mind them doing this ....

            "The trick is for the industry to come up with a number that's big enough for people to care but not too big for them to believe."

            Actually no matter what number they come up with, even if they are entirely truthful, will be believed. They have lost trust and lied far to often.

             

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          Killer_Tofu (profile), Mar 9th, 2011 @ 11:53am

          Re: Re: Re: I really do not mind them doing this ....

          As long as people keep seeing the fight in our country as a "republican vs democrat" things are much less likely to change. The real war here is the rich and powerful vs the the 99+% of the population. Most people just don't realize it yet.

           

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          Killer_Tofu (profile), Mar 9th, 2011 @ 12:05pm

          Re: Re: Re: I really do not mind them doing this ....

          Also, Heph, thank you greatly for that link. The comments are indeed priceless and looks like they were closed down pretty quickly too to stop more from pouring in. Glad to see that the propaganda isn't working elsewhere either.

           

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            Hephaestus (profile), Mar 9th, 2011 @ 1:24pm

            Re: Re: Re: Re: I really do not mind them doing this ....

            I got the link from TorrentFreak a couple days ago.

            One interesting thought for you. The internet and related tools allow for "the truth" to become consensus over time. In a way that is similar to how a bubble sort works. Over time, the hype sinks to the bottom, and the stuff people agree upon, slowly works its way to the top.


            Looking at the article in that aussie paper you see that ~95% of the commenters are saying that its a press release dressed upto to be a news article and-or disagreeing with the author. 5 years back that would have been an almost even mix of "pro" and "anti".

            It gives me hope ...

            I am on a Roo :D

             

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              Killer_Tofu (profile), Mar 10th, 2011 @ 5:58am

              Re: Re: Re: Re: Re: I really do not mind them doing this ....

              Hope indeed.
              Things are going to get better whether the cartels accept it or not.
              On a roo eh? [ disconnects ]

               

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                Hephaestus (profile), Mar 10th, 2011 @ 6:25am

                Re: Re: Re: Re: Re: Re: I really do not mind them doing this ....

                "Things are going to get better whether the cartels accept it or not."

                I am very good at forcasting trends, and finding trends just as they begin to happen. The trends here are all not in favor of big content. Prices for the consumer are going to zero. The failure of any content middle men (reads TV cable companies, new papers, etc). All in all its going to be a really good thing for every outside of media distribution.

                 

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                  Killer_Tofu (profile), Mar 10th, 2011 @ 12:05pm

                  Re: Re: Re: Re: Re: Re: Re: I really do not mind them doing this ....

                  [ while I agree, I am sorry I did not get your reply as I disconnected when you said you were on a Roo ]

                   

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          Jose_X, Mar 9th, 2011 @ 7:25pm

          Re: Re: Re: I really do not mind them doing this ....

          >> As this example from australia shows .. http://www.smh.com.au/technology/technology-news/nation-of-unrepentant-pirates-costs-900m-20110305-1 bix5.html

          Quoting an entire comment of a "pirate":

          ***
          The studios have for too long relied on giving content "value" by pumping up demand for pretty woeful acts, then artificially limiting supply. Well that trick doesn't work any more.

          However, smart distributors can leverage the power of how easily media is copied, to reduce the overheads of traditional content. And today there is no bigger example than the BBC and Monty Python, who have put most of their material onto Youtube:

          http://www.youtube.com/user/montypython

          What happened as a result of this? The BBC found sales of Monty Python DVDs went up 231-fold. That's not 231%, that's 23,100%.

          http://www.slashfilm.com/free-monty-python-videos-on-youtube-lead-to-23000-dvd-sale-incr ease/

          Regardless of the legal and ethical aspects, distributors have to face the fact that this is the 21st century, and downloading is here to stay. Distributors, stop treating us with contempt and get with the program.
          ***

           

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        Hephaestus (profile), Mar 9th, 2011 @ 9:46am

        Re: Re: I really do not mind them doing this ....

        They are pushing to the point where something has to give. It seems to be endemic of all elected officials, government organizations, and large corporations recently. Ignoring the rules and laws, the will of the populace, and doing it in a blatant way. All the while thinking that the evening news will cover it all up by shouting louder than the bloggers and networks people have set up.

        As this example from australia shows, the news doesn't work any more. Read the comments they are better than the article itself.

         

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    The eejit (profile), Mar 9th, 2011 @ 8:22am

    HAHAHAHAHA!

    Oh, wow! [/Tintin]

     

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    Anonymous Coward, Mar 9th, 2011 @ 8:41am

    It's the U.S. of A. Did you really think anything different would happen? Do you really expect any consequences? How naive.

     

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    Anonymous Coward, Mar 9th, 2011 @ 8:49am

    He did not distribute the works.

    LOL. I can't believe you write this BS with a straight face.


    Now cue moronic analogies about what he was really doing...

     

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      cc (profile), Mar 9th, 2011 @ 9:06am

      Re:

      No need for analogies. Not a single byte of those works was distributed through his servers. Period.

       

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        Anonymous Coward, Mar 9th, 2011 @ 9:22am

        Re: Re:

        Might want to understand the definition of the word "distribute".

         

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          cc (profile), Mar 9th, 2011 @ 9:25am

          Re: Re: Re:

          I understand it. Do you?

           

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            vivaelamor (profile), Mar 9th, 2011 @ 1:20pm

            Re: Re: Re: Re:

            "I understand it. Do you?"

            Maybe they're implying the offence is that of separating the copyrighted material into categories.

             

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              Anonymous Coward, Mar 9th, 2011 @ 3:10pm

              Re: Re: Re: Re: Re:

              All the idiots below are wrong about it being a map or just giving directions.

              The web user doesn't need to go any further once he reaches that website. He doesn't need a map or directions anywhere. He's found exactly what he wants: the ability to click and break the law.

              All these sites are going to be busted for direct infringement because it's going to be ruled that they're distributing it. Sorry.

               

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                idiot, Mar 9th, 2011 @ 3:33pm

                Re: Re: Re: Re: Re: Re:

                Your knowledge of how the internet works is very impressive.
                The web user does need to go farther to get what he wants, he has to go to the website that has the content. Unless of course he wanted to look at a bunch of links then he doesn't need to go anywhere.

                A link is by its very definition a set of directions. You click it and it directs your browser to another page/server.

                Also I find it hard to belive they will find him guilty of direct infringment since that's not even what he is being charged with. He is being charged with aiding/inducement. Sorry.

                 

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                  Anonymous Coward, Mar 10th, 2011 @ 5:43am

                  Re: Re: Re: Re: Re: Re: Re:

                  Also I find it hard to belive they will find him guilty of direct infringment since that's not even what he is being charged with. He is being charged with aiding/inducement. Sorry.

                  LOL! Wrong!
                  He's being charged with distribution; criminal copyright infringement.

                  You dumb suckers believe anything Masnick tells you.

                   

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                vivaelamor (profile), Mar 9th, 2011 @ 3:34pm

                Re: Re: Re: Re: Re: Re:

                "The web user doesn't need to go any further once he reaches that website."

                Technically, by the standard you're setting they don't need to go any further once they've sat down at the computer. Oh, you mean figuratively. Like "the idiots below" did.

                "He's found exactly what he wants: the ability to click and break the law."

                I guess when we all get personal transporters then that would make actual maps and directions criminal too.

                 

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                  Anonymous Coward, Mar 9th, 2011 @ 5:44pm

                  Re: Re: Re: Re: Re: Re: Re:

                  You don't understand. The end user is not required to go anywhere else after reaching this website. He is seeking something and needs to find someone that distributes it. His journey ends at that website. The particulars of how the offending distributor achieves delivery to the above person is completely immaterial. The person goes the to website, the site registers the hit and whatever clicks it gets on its ads, the person clicks on the material they want, and that's it. End of the line, transaction complete.

                   

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                    vivaelamor (profile), Mar 9th, 2011 @ 6:12pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "You don't understand."

                    I'm pretty sure I understand what you're saying, I just don't understand what difference it is supposed to make.

                    "The end user is not required to go anywhere else after reaching this website"

                    What difference does that make to the issue?

                    "The particulars of how the offending distributor achieves delivery to the above person is completely immaterial"

                    Why are the particulars completely immaterial?

                    "the person clicks on the material they want, and that's it. End of the line, transaction complete."

                    What, nothing happens when they click the link? You seem to be leaving out the actual transaction bit for some reason.

                     

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                      Anonymous Coward, Mar 10th, 2011 @ 4:09am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      What difference does that make to the issue?

                      Because that is what defines him as the distributor.

                      Why are the particulars completely immaterial?

                      Because they do not affect the end result.

                      What, nothing happens when they click the link?

                      Yes, of course something happens when they click the link. That's the problem for McCarthy, isn't it?

                       

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                        vivaelamor (profile), Mar 10th, 2011 @ 6:18am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        "Because that is what defines him as the distributor."

                        By what standard? It's not any dictionary definition (legal or otherwise) that I've read and you haven't cited any case law or other reference to back up your claim.

                        "Because they do not affect the end result."

                        It's your burden to explain to us why they don't affect the end result. We've explained how the particulars mean that linking is not distributing. All you've done is told us that we're wrong, not why.

                        "Yes, of course something happens when they click the link. That's the problem for McCarthy, isn't it?"

                        Then why leave it out of your example and end with 'transaction complete', when what you really meant was 'user action complete'? It would seem to me that the actual distribution part of the scenario would be the most important part to include. Let's fix it:

                        The person goes the to website, the site registers the hit and whatever clicks it gets on its ads, the person clicks on a link to the material they want and their computer contacts a third party's server which then provides the material.

                         

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                Mike Masnick (profile), Mar 9th, 2011 @ 4:06pm

                Re: Re: Re: Re: Re: Re:

                All these sites are going to be busted for direct infringement because it's going to be ruled that they're distributing it.

                Now that's interesting. You're not even claiming contributory infringement, but direct infringement?

                That would make for quite a lawsuit since he doesn't appear to violate any of the rights given by copyright law. You're claiming he's infringing the "distribution" right, but that's simply untrue. He does no distribution whatsoever. I'm curious as to where in your reading of the law linking counts as distribution.

                 

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                  identicon
                  Anonymous Coward, Mar 10th, 2011 @ 1:19am

                  Re: Re: Re: Re: Re: Re: Re:

                  I'm not sure how you believe linking isn't distribution.

                  If it isn't, what is it?

                  All linking is distribution on some type of scale. His site wasn't like Google or any other common search engine, in that only specific things were linked to. That shows his intent, and since the links were infringing that put him in the legal jeopardy he currently finds himself in.

                   

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                    The eejit (profile), Mar 10th, 2011 @ 7:09am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    It's like the difference between a 'You are HERE' marker in a mall and a mall store. Nice and simple.

                     

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                    Any Mouse (profile), Mar 10th, 2011 @ 7:50am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    A link is simply a wire between two places. The distributor is the server that's transmitting the *cough* 'illegal content.'

                     

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                    btr1701 (profile), Mar 10th, 2011 @ 9:57am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    > I'm not sure how you believe linking isn't
                    > distribution.

                    > If it isn't, what is it?

                    It's merely providing information.

                    It's no different than someone asking someone else on the street, "Hey man, where do they sell pot in this town?" If the response is, "Down off Main Street by the river," that's hardly the equivalent of illegal drug distribution and any prosecutor who authorized an arrest and tried to make such a case, would be laughed out of court and possibly referred to the bar for disciplinary proceedings.

                     

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          el_segfaulto (profile), Mar 9th, 2011 @ 9:42am

          Re: Re: Re:

          Giving away a map to a drug dealer's house is not distributing marijuana.

           

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            identicon
            Anonymous Coward, Mar 9th, 2011 @ 9:50am

            Re: Re: Re: Re:

            Might be unethical if you know he sells it, but not illegal

             

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            Anonymous Coward, Mar 9th, 2011 @ 1:18pm

            Re: Re: Re: Re:

            This is not a map, it's a direct distribution. It's not like he said "go on the official site and pay for it", he posted links of infringing contents. Your analogy fails.

             

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              identicon
              Anonymous Coward, Mar 9th, 2011 @ 2:01pm

              Re: Re: Re: Re: Re:

              How is it *direct* distribution? Was ANY of his bandwidth used to transfer the copyrighted work? No. It was only used to tell people where they might find it. The keyword: FIND

              There is no difference between me linking to a copyrighted piece of work on the internet versus me telling you, vocally, where it's located.

               

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              HothMonster, Mar 9th, 2011 @ 2:29pm

              Re: Re: Re: Re: Re:

              Its very much a map, clicking the link guides you to another place. "Direct distribution" would be giving it to someone not telling them were it is. He didn't host (distribute) the content he only had directions on how to get to a distributor.

              Its not like he provided the content he said "if you want you can go to this site and watch it"

              Or just like the non-fail analogy "I dont have any drugs but you can get them there."

              Your fail fails

               

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              HothMonster, Mar 9th, 2011 @ 2:31pm

              Re: Re: Re: Re: Re:

              PS.
              "It's not like he said "go on the official site and pay for it", he posted links of infringing contents."

              if there was an official site you could go to and pay for and steam most of this content then we probably wouldn't be having this conversation. As long as that price is "reasonable"

               

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            Anonymous Coward, Mar 9th, 2011 @ 5:48pm

            Re: Re: Re: Re:

            Giving away a map to a drug dealer's house is not distributing marijuana.

            If the the map is given under the terms you just specified, that person is indeed committing a crime.

             

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              Any Mouse (profile), Mar 10th, 2011 @ 7:58am

              Re: Re: Re: Re: Re:

              What terms? I'm not able to find anyone specifying any terms, let along any that makes giving a map to anywhere or anything criminal.

               

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          Anonymous Coward, Mar 9th, 2011 @ 9:59am

          Re: Re: Re:

          Please enlighten us.

           

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      Howard the Duck, Mar 9th, 2011 @ 9:55am

      Re:

      If I tell you where the hookers are, should I go to jail?

       

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        Kevin (profile), Mar 9th, 2011 @ 11:24am

        Re: Re:

        Well if you know where they are then you probably had some dealings with them at some point. So yes you should go to jail.

         

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          Ron Rezendes (profile), Mar 9th, 2011 @ 12:43pm

          Re: Re: Re:

          If that's your idea of "probable cause" you should apply for a job with ICE or Homeland Security - you'll get along great with your boss!

          Of course, I'd rather see you beaten in the street by an angry mob for violating the civil rights of US citizens if you really believe that. It's nothing personal, but it would surely set a great example for others who are as half witted as you appear to be.

           

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    identicon
    Anonymous Coward, Mar 9th, 2011 @ 8:53am

    there is no inducement standard in criminal infringement

    This is an absolute lie, and you know it. Inducing is the same as aiding and abetting. As I explained in the other thread, aiding and abetting criminal copyright infringement has been a crime since 1909, the year copyright infringement was made a crime.

    As Demand Progress notes, letting Homeland Security and the Justice Department claim that linking to or embedding content can be a criminal act should be horrifying to anyone who understands the very basics of how the internet works.

    Despite all of your ridiculous, brainless FUD, willfully linking and embedding to infringing content can be aiding and abetting criminal copyright infringement. What's horrifying is how you misrepresent the law to further your agenda.

    Section 106 of the Copyright Act covers the six exclusive rights that copyright is supposed to provide. I can't see how McCarthy violated any of these.

    If he aided and abetted others to violate those rights, then he is guilty as if he violated them himself. Cf. the U.S. v. Dove case I cited in the other thread. Dove was not even charged with aiding and abetting, yet the judge allowed a jury instruction on that theory. Why? Because it doesn't matter if you did it yourself or if you aided and abetted others to do it. Either way, you are guilty as if you had done it yourself.

     

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      Rose M. Welch (profile), Mar 9th, 2011 @ 8:58am

      Re:

      ...to further your agenda.

      What, exactly, is his agenda?

       

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      Anonymous Coward, Mar 9th, 2011 @ 8:58am

      Re:

      Now we can all agree that you are the one full of shite here.

       

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      Daph, Mar 9th, 2011 @ 9:00am

      Re: Just trying to help.

      "It's possible that the feds could go with an aiding and abetting charge, but that requires a much higher standard, and it's not clear that the feds have enough to make such a claim really stick."

      Did you miss that part?

       

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        Anonymous Coward, Mar 9th, 2011 @ 9:07am

        Re: Re: Just trying to help.

        No, I caught it. Apparently Mike missed the part where inducement is the same as aiding and abetting. He's trying to pretend like their different things in the criminal law. They are not. It's all FUD.

        http://www.law.cornell.edu/uscode/18/usc_sec_18_00000002----000-.html

        "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. 2

         

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          Anonymous Coward, Mar 9th, 2011 @ 9:13am

          Re: Re: Re: Just trying to help.

          You have to prove intent, so far ICE proved nothing and yielded nothing.

          So we can very surely laugh hard at ICE and be sure that you are just a-hole trying to spread the real FUD.

           

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            Anonymous Coward, Mar 9th, 2011 @ 9:17am

            Re: Re: Re: Re: Just trying to help.

            You have to prove intent, so far ICE proved nothing and yielded nothing.

            So we can very surely laugh hard at ICE and be sure that you are just a-hole trying to spread the real FUD.


            Intent can be inferred. In fact, in criminal cases it usually is inferred since the criminal doesn't typically admit it (or else, there wouldn't be much of a trial).

            How hard do you think it is to infer that he intended to facilitate others to infringe when he updated his site with the latest links to the latest infringing works? LOL! That was his ONLY intent.

            Why are you guys defending a guy who so obviously intended to violate the law?

             

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              cc (profile), Mar 9th, 2011 @ 9:22am

              Re: Re: Re: Re: Re: Just trying to help.

              "Why are you guys defending a guy who so obviously intended to violate the law?"

              Because merely linking shouldn't be a crime no matter what fucked up notion of copyright you are supporting.

               

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                Anonymous Coward, Mar 9th, 2011 @ 9:24am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                So aiding, abetting, and inducing others to commit a crime shouldn't be a crime? LOL! That's not how it works.

                 

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                  Anonymous Coward, Mar 9th, 2011 @ 9:35am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  Well somebody in your family right now is aiding and abetting that crime you mentioned.

                  Also I don't really care what the law says, this is wrong, and even if he goes to jail, you people still are screwed because nobody respect that law.

                  Heck with cellphones coming with video output you don't even need to have internet.

                  Want to see something fun?
                  Anyone can setup a server to retransmit and record any free over the air and I think I will start just doing that, just to piss of you people who think so highly of all this BS.

                  I will pirate my pants off and I dare you come and get me MF.

                   

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                  Joe Dirt, Mar 9th, 2011 @ 9:56am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  Hey I wanted to let you guys, or anyone interested, know where the crack dealers hang out in this town. Does that make me a criminal?

                   

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                  cc (profile), Mar 9th, 2011 @ 9:57am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  Next time a girl sends you a link to a copyrighted YouTube video, call the police on her -- otherwise you'll be an accomplice!

                   

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                  Marcus Carab (profile), Mar 9th, 2011 @ 10:41am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  But merely watching a few unauthorized streams as his users do is not criminal infringement. So what crime is he aiding and abetting?

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 11:07am

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    That's a good question, and I suppose we'll see. I assume they'll say he's an accomplice to the people who are uploading and hosting the content, not to those who are downloading it.

                     

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                    Anonymous Coward, Mar 9th, 2011 @ 5:53pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    He is distributing copyrighted material without authorization. Those that host the streams are also guilty, but that doesn't absolve him of illegal distribution.

                    This is really a no brainer.

                     

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                      Mike Masnick (profile), Mar 10th, 2011 @ 1:27am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      He is distributing copyrighted material without authorization.

                      I've seen no single case that supports the claim that this is distribution. Even the other AC in this thread who agrees with you on everything has admitted there's no direct infringement.

                       

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                        Anonymous Coward, Mar 10th, 2011 @ 2:07am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                        I don't know who this other AC is, so that doesn't really tell me much. But this McCarthy person was distributing infringing material on the internet in one of the most obvious and easiest ways possible.
                        DOJ has stated they're charging him with direct infringement, so I'm not really understanding where you're confusion originates.

                         

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                          The eejit (profile), Mar 10th, 2011 @ 3:38am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                          First off, you suffer from Misplaced Apostrophe Syndrome. It's very common.

                          Secondly, it was originally criminal contributory infringement he was charged with, along with aiding and abetting. So how can he be directly infringing, yet charged with contributory?

                           

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                          Mike Masnick (profile), Mar 10th, 2011 @ 3:49am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                          I don't know who this other AC is, so that doesn't really tell me much. But this McCarthy person was distributing infringing material on the internet in one of the most obvious and easiest ways possible.
                          DOJ has stated they're charging him with direct infringement, so I'm not really understanding where you're confusion originates


                          It's been asked of you before, and you still haven't answered, but how is it distributing? The case law here is pretty clear (Perfect 10 is noted above) that this is not distribution at all.

                          So I'll ask you again how is this distribution, and you just repeating "it's distribution!" is not an answer. This site hosted no content. It distributed no content. It's not direct distribution in any way, shape or form.

                          Can you cite a single case that suggests linking is distribution?

                           

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                            Anonymous Coward, Mar 10th, 2011 @ 4:24am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                            Sorry about the your/you're error, I apparently was typing too fast.

                            The Perfect 10 case you cite was against Google; it's already been demonstrated how Google conducts their business in a far different way than Channelsurfing did.

                            This need to pretend that all search engines are the same is rather silly, and is not going to end up the way you want it to.

                             

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                              Any Mouse (profile), Mar 10th, 2011 @ 8:01am

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                              Reading the Perfect 10 case, I see nothing that states Google won because of how Google conducts business. I DO see how Google won based upon a link not being distribution. That much is very clearly stated inside the decision.

                              Maybe you should go back and read it? And THEN site a case that supports your argument (finally)?

                               

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                              Karl (profile), Mar 10th, 2011 @ 10:33pm

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                              it's already been demonstrated how Google conducts their business in a far different way than Channelsurfing did.

                              The determination about whether Google was a direct infringer did not consider how Google conducts their business. It had absolutely no bearing on that part of the case. (It was considered in their fair use defense.)

                              Rather, that case was (another) decision that upheld the "server test." That is: the only way any entity can be considered a direct infringer is if the (allegedly) infringing content was delivered to users directly from their servers. If not, they are in no way direct infringers. They could be liable for secondary infringement (which does not currently exist in criminal law), but that's the total extent of their liability.

                               

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                            Anonymous Coward, Mar 10th, 2011 @ 4:33am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                            It distributed no content.

                            Of course it distributed content. Linking to something is distributing it. Google does the same thing, just not exclusively infringing content. Intent is the basis of criminal law, and that is why Google is not taken down. Their intent is to search everything. Channelsurfing's wasn't.

                            You seem to be under the delusion that only one party can distribute something, and therefore only they can be guilty of distribution under 506. That's incorrect.

                            My breakfast cereal originated in Battle Creek, Michigan. How many times was it distributed before it got to me?

                             

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                              Anonymous Coward, Mar 10th, 2011 @ 5:16am

                              Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                              Linking to something is distributing it.

                              I don't believe that is correct. If all you are providing is a link, then the infringing material never crosses your server. The link only tells the user's browser what other server to go to for the infringing material. Providing a link can make you an indirect infringer, but not a direct infringer.

                              Distributing means that you yourself give someone else the infringing material. If I give you a link to an infringing copy of a Harry Potter movie, I haven't distributed the movie because I haven't given you any of the movie. I've facilitated your infringement, and there can be liability for that, but I haven't distributed anything.

                               

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                                Anonymous Coward, Mar 10th, 2011 @ 5:52am

                                Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                                Distribution manifests itself in more ways than just being the server host.

                                Sorry.

                                 

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                                  Anonymous Coward, Mar 10th, 2011 @ 6:01am

                                  Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                                  Can you point me to single court opinion that supports your position?

                                  My position is based on the Ninth Circuit's reasoning in Perfect 10 v. Amazon/Google:
                                  Instead of communicating a copy of the image, Google provides HTML instructions that direct a user's browser to a website publisher's computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user's computer screen. The HTML merely gives the address of the image to the user's browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user's computer screen. Google may facilitate the user's access to infringing images. However, such assistance raises only contributory liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005), Napster, 239 F.3d at 1019, and does not constitute direct infringement of the copyright owner's display rights.
                                  http://scholar.google.com/scholar_case?case=9280547131690965273&hl=en&as_sdt=2&as _vis=1&oi=scholarr

                                   

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                                    Any Mouse (profile), Mar 10th, 2011 @ 8:03am

                                    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                                    There it is. Thanks for posting that. :) I see that the AC still hasn't offered up its proof.

                                     

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                                      Jay (profile), Mar 10th, 2011 @ 8:43am

                                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                                      AJ offering proof?
                                      Once refuted, he runs and hides unfortunately, only to come back and reassert the exact same thing when a similar issue comes up.

                                       

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                                        Ben (profile), Mar 10th, 2011 @ 6:04pm

                                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                                        For want of a horizontal scrollbar in threaded view...

                                         

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                                          vivaelamor (profile), Mar 10th, 2011 @ 6:37pm

                                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                                          "For want of a horizontal scrollbar in threaded view..."

                                          There is an option in your account settings to set page width as variable, which greatly improves heavily nested comments for me.

                                           

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                                            Karl (profile), Mar 11th, 2011 @ 6:59am

                                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                                            There is an option in your account settings to set page width as variable, which greatly improves heavily nested comments for me.

                                            Off-topic, but this advice is extremely helpful. Thank you!

                                             

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                Anonymous Coward, Mar 9th, 2011 @ 9:40am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                Perhaps I am mistaken, but it is my recollection that this individual were far beyond mere linking.

                 

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              Anonymous Coward, Mar 9th, 2011 @ 9:23am

              Re: Re: Re: Re: Re: Just trying to help.

              Yah right inferred LoL

              Not even the supremes say that.
              Many real criminals walked because the government couldn't prove intent, and by the looks of it the emails seized from him must be damaging for the prosecution because they didn't find squat yet to jump up and down, so that man may have the last laugh yet.

              You see even the English didn't have the balls to stretch the law that far and they have no problem lying and manipulating the judicial system, I doubt the U.S. will allow such a thing.

               

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              The eejit (profile), Mar 9th, 2011 @ 9:23am

              Re: Re: Re: Re: Re: Just trying to help.

              You've obviously never heard of the 'innocent infringer' defense. Not that it, admittedly, is likely to apply here.

               

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                Anonymous Coward, Mar 9th, 2011 @ 9:27am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                I'm aware of it, but as you said, it doesn't likely apply here. Once McCarthy's first website had its domain name seized, he just got a new domain name and reopened up shop. Hard to pretend like he wasn't on notice that maybe he was doing something wrong when the feds seized his domain name. I am confident that a jury will have ZERO difficulty finding that he had criminal intent.

                 

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                  Jay (profile), Mar 9th, 2011 @ 9:44am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  Maybe someone will nullify the jury. That oughta be interesting...

                   

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                    harbingerofdoom (profile), Mar 9th, 2011 @ 10:12am

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    i cant see this ever getting that far.
                    either charges will be dropped or he will accept a slap on the wrist plea which will be trumpeted as a major success in the fight against the thieves.

                     

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                  Gwiz (profile), Mar 9th, 2011 @ 10:00am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  Hard to pretend like he wasn't on notice that maybe he was doing something wrong when the feds seized his domain name. I am confident that a jury will have ZERO difficulty finding that he had criminal intent.

                  Or maybe, he didn't think what he was doing was any sort of criminal offense, only a civil violation. Makes sense, since it hasn't been proven to be a criminal offense yet.

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 10:03am

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    Either way, that's irrelevant to an "innocent infringer" defense, which really has no relevance to this case.

                     

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                      Anonymous Coward, Mar 9th, 2011 @ 11:56am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      Right, the innocent infringer defense only applies to civil infringement.

                       

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                    Anonymous Coward, Mar 9th, 2011 @ 10:09am

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    Makes sense, since it hasn't been proven to be a criminal offense yet.

                    Aiding and abetting criminal copyright infringement has been a crime since 1909. I quoted several recorded cases in the other thread. Try again.

                     

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                      Gwiz (profile), Mar 9th, 2011 @ 10:17am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      Aiding and abetting criminal copyright infringement has been a crime since 1909. I quoted several recorded cases in the other thread.

                      Maybe so, but still, find me a lawyer who would have advised his client a year ago that merely linking to something would leave you vulnerable to criminal charges.

                       

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                      Marcus Carab (profile), Mar 9th, 2011 @ 10:43am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      Where is the criminal infringement he is aiding? People watching streams through his website are only committing civil infringement.

                       

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                        Anonymous Coward, Mar 9th, 2011 @ 11:11am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                        I think I just answered this same question above, but I assume they'll argue that he's an accomplice to the people uploading and hosting the content.

                         

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                          Marcus Carab (profile), Mar 9th, 2011 @ 11:43am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                          Yeah sorry to repeat the question in a couple spots but this is my biggest issue with the discussion around the whole aiding & abetting issue, and this is the first time someone has answered it - so thanks for that :)

                          See, that's really my main issue. There is so much we don't know about the people uploading the content: how many of them are there? how systematic is it? is one person uploading every episode of a show the moment it comes out, or are a thousand fans uploading new episodes on whims, culminating in a complete set? Are the people uploading promoting the infringing content to the public themselves as well, or are they simply sending links to their friends and family?

                          It seems that those questions and more would have to be answered before there can be any consideration of criminal infringement on the part of the uploaders. And given that, as you say, it needs to be proven that a crime has taken place in order to charge someone with aiding and abetting that crime, it seems like even bringing A&A up is SERIOUSLY jumping the gun.

                           

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                            Anonymous Coward, Mar 9th, 2011 @ 11:59am

                            Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                            I'm just as curious as you how the prosecution will prove their case. I guess we'll have to wait for them to really lay their case out.

                             

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                      Anonymous Coward, Mar 9th, 2011 @ 10:49am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      Aiding and abetting what?

                      ICE couldn't show that somebody was doing criminal copyright infringement even if they wanted to because they are so incompetent.

                       

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                      Anonymous Coward, Mar 9th, 2011 @ 10:51am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      Sweden for Gods sake have apprehended a real pirate, even they got one and have more evidence than ICE.

                       

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              Gwiz (profile), Mar 9th, 2011 @ 9:51am

              Re: Re: Re: Re: Re: Just trying to help.

              How hard do you think it is to infer that he intended to facilitate others to infringe when he updated his site with the latest links to the latest infringing works? LOL! That was his ONLY intent.

              I have seen this in other comments.

              I really think you need to share your magic magnifying glass with the rest of the world.

              As it has been shown on more that one occasion (Viacom v. Google for example), the content owners themselves don't even know what is infringing and what is authorized.

              So I find incredulous that you can by way of a 5 minute examination of a site determine that is dedicated to infringing.

               

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                Anonymous Coward, Mar 9th, 2011 @ 9:57am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                Dream on. Do you think he updated links to the latest high-value infringing works while he kicked back and took in cash from advertising, but it was all so very innocent? You guys are delusional.

                 

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                  Gwiz (profile), Mar 9th, 2011 @ 10:03am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  You guys are delusional.

                  Really? I am not the one passing judgment on the guy prior to outcome of all this.

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 10:06am

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    It took me about 30 seconds to look over his site and to deduce that it was infringing by design: http://www.channelsurf.eu/

                    The site appears to be down now.

                    I'm just pointing out the PAINFULLY OBVIOUS about what that site was about. Anyone pretending that that site wasn't set up to facilitate infringement is a liar.

                     

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                      Gwiz (profile), Mar 9th, 2011 @ 10:20am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      I'm just pointing out the PAINFULLY OBVIOUS about what that site was about. Anyone pretending that that site wasn't set up to facilitate infringement is a liar.

                      Painfully obvious to you and your magic magnifying glass.

                      Not so obvious to anyone else, including the content owners.

                       

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                      chris (profile), Mar 9th, 2011 @ 10:56am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      It took me about 30 seconds to look over his site and to deduce that it was infringing by design: http://www.channelsurf.eu/

                      OMFG YOU ARE AIDING AND ABETTING!!!1!

                       

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                        HothMonster, Mar 9th, 2011 @ 2:39pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                        He has a point. You told me I could find infringing content there AND linked to it!!!!! ICE and Joe Biden have been informed. I predict you get 18 months and a hefty fine, seeing as how you are hanging out with all these freetards your intent can easily be inferred. In fact i deduced your criminal intent in under 30 seconds.

                         

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                Anonymous Coward, Mar 10th, 2011 @ 2:24am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                It appears that the vast majority of content on this person's website, and possibly all of it, was infringing. You're suggesting he adopt a defense via ignorance. The percentage of people that use this defense successfully is less than one percent. I personally, don't like his odds.

                 

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              Howard the Duck, Mar 9th, 2011 @ 10:01am

              Re: Re: Re: Re: Re: Just trying to help.

              So a link to Wikileaks is also criminal?

               

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          Anonymous Coward, Mar 9th, 2011 @ 9:14am

          Re: Re: Re: Just trying to help.

          Oops. "their" should be "they're."

           

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          RD, Mar 9th, 2011 @ 9:17am

          Re: Re: Re: Just trying to help.

          "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. 2"

          So you support shutting down Google, removing phone books, libraries, maps, etc. Good to know.

           

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            Anonymous Coward, Mar 9th, 2011 @ 9:18am

            Re: Re: Re: Re: Just trying to help.

            LOL! There is no criminal intent on Google's part. Nice straw man.

             

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              cc (profile), Mar 9th, 2011 @ 9:24am

              Re: Re: Re: Re: Re: Just trying to help.

              How do you know? Intent can be inferred, they don't need to admit it :P

               

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              Daph, Mar 9th, 2011 @ 9:31am

              Re: Re: Re: Re: Re: Just trying to help.

              According to you:

              "If he aided and abetted others to violate those rights, then he is guilty as if he violated them himself. Cf. the U.S. v. Dove case I cited in the other thread. Dove was not even charged with aiding and abetting, yet the judge allowed a jury instruction on that theory. Why? Because it doesn't matter if you did it yourself or if you aided and abetted others to do it. Either way, you are guilty as if you had done it yourself."

              ?

               

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                Anonymous Coward, Mar 9th, 2011 @ 10:16am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                aiding/abetting/inducement require a certain intent/state of mind. Google doesn't have that when it indexes everytying on the internet.

                 

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              RD, Mar 9th, 2011 @ 11:16am

              Re: Re: Re: Re: Re: Just trying to help.

              "LOL! There is no criminal intent on Google's part. Nice straw man."

              No straw man, your own words:

              "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. 2:"

              I see nothing in that statement about intent. You are either wrong or you support shutting down ALL avenues of speech and information. Which is it?

               

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                Anonymous Coward, Mar 9th, 2011 @ 11:40am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                I don't think he can be "wrong" when simply quoting a statute. The statute doesn't specifically mention intent, but intent is an element of aiding/abetting/inducement under both criminal and civil law.

                At any rate, he clearly specified that intent is necessary, so I'm not sure why you're solely relying on the statutory quote.

                 

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                  Anonymous Coward, Mar 9th, 2011 @ 12:08pm

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  Right. Every statute has an implicit intent (mens rea) element, even it's not included in the statute itself. In the Model Penal Code, for example, if the intent is not indicated, it's presumed to be "recklessly."

                  The mens rea that applies to this case is actually a two-fold inquiry because this is a specific intent crime. The government has to prove (1) that he intentionally committed the act, and (2) that he did so with the intent to facilitate infringement.

                  You get these two elements of the crime from case law and not the statute.

                   

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          HothMonster, Mar 9th, 2011 @ 9:18am

          Re: Re: Re: Just trying to help.

          This was an offense against the United States? I believe the offense is against corporations.

          CyberWar!!! we are under attack!!!!!

           

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            Anonymous Coward, Mar 9th, 2011 @ 9:36am

            Re: Re: Re: Re: Just trying to help.

            "...against the United States" means an act in contravention of US criminal law.

            Interpreted otherwise, one-on-one crimes such as homicide would not be deemed a criminal offense under federal law.

             

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              Anonymous Coward, Mar 9th, 2011 @ 9:39am

              Re: Re: Re: Re: Re: Just trying to help.

              Well since ICE can't prove intent apparently and have no other proof of anything they are screwed.

               

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                Anonymous Coward, Mar 9th, 2011 @ 9:46am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                LOL! It cracks me up that you guys think it'll be hard to prove his intent. Do you think he updated the infringing links on his site accidentally? You know, the infringing links that drew the traffic to his website and that made him money.

                 

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                  The eejit (profile), Mar 9th, 2011 @ 10:05am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  And there are expenses to be paid for hosting the site, maintaining servers, which he would have to provide, as per section 506.

                   

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                  harbingerofdoom (profile), Mar 9th, 2011 @ 10:18am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  it cracks me up even more than here you are crusading as some sort of self styled defender of the law while trashing one of the main tenents of the constitution by rushing to claim him guilty before a trial date has even been set.

                  not hypocritical at all...nope, not at all....

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 11:15am

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    Legally, he's not guilty. My opinion, based on the little I've read and seen, is that he is guilty. It's just my opinion. You do understand the difference between the legal presumption of innocence and someone's opinion about whether they really did it, right?

                     

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                      harbingerofdoom (profile), Mar 9th, 2011 @ 11:59am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      nice spin attempt.
                      didnt work, but nice attempt none the less.

                      this is the first time that you have stated that in YOUR opinion he is guilty. everything before this was that it was obvious he was guilty and that there was no debate as to whether any laws were broken since you flat declared that there were.

                       

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                  Howard the Duck, Mar 9th, 2011 @ 11:12am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  I do not believe he was an innocent infringer. I believe he's not following the law. I believe this could be misused widely to cap dissent.

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 3:24pm

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    I believe this could be misused widely to cap dissent.

                    That's just FUD, spoken by people hoping they can get away with breaking the law a little longer.

                     

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                  steve, Mar 9th, 2011 @ 11:14am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  You seem to confuse what may be an objectionable consequence of a law with breaking the law. The pastor who protests at military funerals would almost universally be denounced and most people would like to put a stop to what he does. Doing so unfortunately takes us down a slippery slope. This is exactly the same thing. Even if we all agree that his motives in linking to the material was not pure, that does not mean he broke the law.

                   

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            Thomas (profile), Mar 9th, 2011 @ 1:35pm

            Re: Re: Re: Re: Just trying to help.

            The U.S. is run by corporations in case you haven't noticed.

             

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          Kirk (profile), Mar 9th, 2011 @ 9:20am

          Re: Re: Re: Just trying to help.

          "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. 2

          So all those things mean the same thing? If so, why isn't there just one word that encompasses all those things? Or, why don't they just pick one?

           

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            Anonymous Coward, Mar 9th, 2011 @ 9:58am

            Re: Re: Re: Re: Just trying to help.

            All those things make you an accomplice, which makes you guilty as if you had committed the crime yourself.

             

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              Kirk (profile), Mar 9th, 2011 @ 11:09am

              Re: Re: Re: Re: Re: Just trying to help.

              No, I caught it. Apparently Mike missed the part where inducement is the same as aiding and abetting. He's trying to pretend like their different things in the criminal law. They are not. It's all FUD.


              So they all create the same legal conditions? That's not the same thing as being the same thing.

               

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                Anonymous Coward, Mar 9th, 2011 @ 11:18am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                As I've indicated elsewhere in this thread, my point was that whether it's aiding and abetting or inducing, it's still accomplice liability either way. You are correct, they are not the same thing. I apologize for not being clear about this. The point is that they lead to the same conclusion. In both cases, the accomplice is treated as the principal. In other words, they are liable as if they had committed the crime themselves.

                 

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          xs (profile), Mar 9th, 2011 @ 9:26am

          Re: Re: Re: Just trying to help.

          By your standard, every publisher of chemistry or biology book listing the poisonious property of some particular compound can be charged with "induces" commision of crime if said chemical compound is used to poison someone.

           

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            Anonymous Coward, Mar 9th, 2011 @ 9:59am

            Re: Re: Re: Re: Just trying to help.

            Nope, not at all. In your example, there is no criminal intent.

             

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              Jay (profile), Mar 9th, 2011 @ 10:08am

              Re: Re: Re: Re: Re: Just trying to help.

              AJ, nice FUD.

               

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                Anonymous Coward, Mar 9th, 2011 @ 10:11am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                There is no FUD. Someone who writes a chemistry book cannot be charged with aiding and abetting unless he published the book with criminal intent. This isn't hard to understand.

                 

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                  Marcus Carab (profile), Mar 9th, 2011 @ 10:46am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  But the law on aiding and abetting that you are so fond of quoting says nothing about intent...

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 11:00am

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    Huh? Intent is two of the three elements (intent being the mens rea of the crime). It's a specific intent crime, so they have to show that McCarthy: (1) intentionally committed the act, and (2) committed the act with the intent to facilitate infringement.

                    "In sum, to prove the act and intent elements for aiding and abetting the commission of a crime, the evidence must demonstrate that the defendant joined and shared in the underlying criminal endeavor and that his efforts contributed to its success." United States v. Pipola, 83 F.3d 556, 562 (2d Cir. 1996).

                     

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                      Jay (profile), Mar 9th, 2011 @ 11:18am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                      How about a more recent case?

                      Say...

                      Xbox modding trial?

                       

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                        Jay (profile), Mar 9th, 2011 @ 11:23am

                        I forgot...

                        There's going to be some backing off on your part so here's the important part of that link:

                        The fair-use issue came up as the judge berated prosecutor Allen Chiu’s proposed jury instructions, which included the assertion that the government need not prove that Crippen “willfully” breached the law, in what is known as “mens rea” in legal parlance. The judge noted that the government’s own intellectual property crimes manual concerning the 1998 DMCA says the defendant has to have some knowledge that he was breaking the law.

                        The first prosecution 12 years later, and you’re suggesting a mens rea that is akin to exactly contrary to the IP manual: that ignorance of the law is no excuse?” the judge barked.


                        Have fun with that FUD you're stirring up AJ...

                         

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                          Anonymous Coward, Mar 9th, 2011 @ 11:58am

                          Re: I forgot...

                          This does not contradict anything he said. Rather, it confirms what he said: that intent is a necessary element.

                           

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                          Anonymous Coward, Mar 9th, 2011 @ 12:11pm

                          Re: I forgot...

                          Again, that case involves a different type of infringement and a different law altogether than the law we're talking about here. In either case, intent is a necessary element to prove the crime. I don't see much of a hurdle in proving that McCarthy ran his website with the intent to facilitate infringement.

                           

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                            Anonymous Coward, Mar 9th, 2011 @ 1:02pm

                            Re: Re: I forgot...

                            Is your name Steele by any chance?

                            The incompetence of ICE, yours and Steele is just flabbergasting LoL

                            ICE can't prove a crime was committed in the first place, but want to charge someone with aiding and abetting, without actually showing or even proving intent, that is just priceless.

                             

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                              Jay (profile), Mar 9th, 2011 @ 3:04pm

                              Re: Re: Re: I forgot...

                              Exactly this. He put up a link to official sources.

                              But supposedly, as you said somewhere else, ignorance of the law is no excuse from it. Out of ALL the sites, they charge this one with criminal copyright infringement. And there's very little to really charge this guy with.

                              It's going to be interesting if the judge in this case looks at the government and gives the exact same tirade as the one in the XBox case.

                               

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                        Anonymous Coward, Mar 9th, 2011 @ 11:23am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                        That's a case about circumvention of Section 512 anti-circumvention provisions. What's that got to do with being an accomplice to someone violating Section 506?

                         

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                  Jay (profile), Mar 9th, 2011 @ 10:54am

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  This is similar to the DMCA where it was used to arrest a Russian researcher for discussing security flaws in Microsoft's hardware.

                  Better yet, how about Sony vs Geohot.

                  But Sony was smart enough to go the civil route. Our government? Not so much.

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 11:59am

                    Re: Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                    "Sony was smart enough to go the civil route"

                    Sony does not have the option of filing a criminal suit. So, yeah, they were smart enough not to do something that they never could have done.

                     

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              xs (profile), Mar 9th, 2011 @ 11:11am

              Re: Re: Re: Re: Re: Just trying to help.

              Just because you says so? How do you prove there's no criminal intent? Or the law supposed to work, how do you prove there is intent?

               

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          Chris Rhodes (profile), Mar 9th, 2011 @ 9:29am

          Re: Re: Re: Just trying to help.

          aiding and abetting

          I'll ask again, since I don't think I got an answer on the last story: Has anyone been charged with a crime for him to have allegedly aided and abetted?

          For example, if the people he were linking to were distributing the material without any financial gain, they wouldn't be criminally liable (only civilly) for copyright infringement, correct? And if their violation was not criminal, can aiding and abetting that civil violation be criminal in turn?

          Is it possible to criminally aid and abet a civil infraction? Honest question.

           

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            Anonymous Coward, Mar 9th, 2011 @ 9:48am

            Re: Re: Re: Re: Just trying to help.

            This is another good point since, there is no concrete proof that a CRIME was committed, maybe a copyright violation yes, but a crime?

            He was never directly involved in it and I doubt ICE can show that a crime was committed for him to aid and abet.

             

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            Anonymous Coward, Mar 9th, 2011 @ 9:50am

            Re: Re: Re: Re: Just trying to help.

            I'll ask again, since I don't think I got an answer on the last story: Has anyone been charged with a crime for him to have allegedly aided and abetted?

            Nope, nor do they need to. That's not how it works. All they have to prove is that SOMEBODY committed a crime and he helped them do it.

            For example, if the people he were linking to were distributing the material without any financial gain, they wouldn't be criminally liable (only civilly) for copyright infringement, correct? And if their violation was not criminal, can aiding and abetting that civil violation be criminal in turn?

            Ever since the NET Act, it can still be criminal even if it's not commercial. It's only aiding and abetting if the person you're helping is committing a criminal act.

            Is it possible to criminally aid and abet a civil infraction? Honest question.

            No. Not possible. To be convicted of aiding and abetting, it has to be proved that someone else committed a crime.

             

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              Chris Rhodes (profile), Mar 9th, 2011 @ 10:18am

              Re: Re: Re: Re: Re: Just trying to help.

              First of all, thanks for responding.

              Nope, nor do they need to. That's not how it works. All they have to prove is that SOMEBODY committed a crime and he helped them do it.

              That was what I was getting at, actually. Not really "charged" I guess, but there would have to be a showing that some crime was at least committed, as you later note.

              Ever since the NET Act, it can still be criminal even if it's not commercial.

              What differentiates criminal infringement from non-criminal infringement?

              To be convicted of aiding and abetting, it has to be proved that someone else committed a crime.

              So my next question is, who was proved to have committed a crime here?

               

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                Marcus Carab (profile), Mar 9th, 2011 @ 10:47am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                Or, canceling the "who" part since I think AC is right that we dont need to identify them, what crime was even committed?

                I see no instance of criminal infringement anywhere in this story.

                 

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                Anonymous Coward, Mar 9th, 2011 @ 11:38am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                Intent for one. In order to be criminal, you have to intend to infringe. For civil infringement, you only have to intend to copy. For civil infringement to rise to the level of criminal infringement, look to 17 U.S.C. 506:
                (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.
                All criminal infringement is also civil infringement, but only some civil infringement is also criminal infringement, as delineated in Section 506.

                 

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              Rose M. Welch (profile), Mar 9th, 2011 @ 11:01am

              Re: Re: Re: Re: Re: Just trying to help.

              Has anyone been charged with a crime for him to have allegedly aided and abetted?

              Nope, nor do they need to. That's not how it works. All they have to prove is that SOMEBODY committed a crime and he helped them do it.


              Legally, you can't prove that someone committed a crime without charging and trying them. So... I think the logic behind this type of charge is a little skewed.

               

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                Anonymous Coward, Mar 9th, 2011 @ 11:31am

                Re: Re: Re: Re: Re: Re: Just trying to help.

                Legally, you can't prove that someone committed a crime without charging and trying them. So... I think the logic behind this type of charge is a little skewed.

                That's not how it works. They only have to prove beyond a reasonable doubt that a crime was committed by someone else--it could be anyone else. They don't have to even name one name.

                Let me give you an example.

                A group of robbers rob a bank. The guys who went in and robbed the bank got away, but the guy driving the getaway car got caught. He could be charged and convicted of being an accomplice to the robbery even though they don't know who the actual bank robbers are. All the prosecutor has to prove is that there was a robbery and he helped.

                 

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                  Rose M. Welch (profile), Mar 9th, 2011 @ 1:35pm

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  Okay, I can see that, but online piracy is not as clear cut as real-life robbery. For one thing, you can conclusively show what's missing. :P

                   

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                  HothMonster, Mar 9th, 2011 @ 2:52pm

                  Re: Re: Re: Re: Re: Re: Re: Just trying to help.

                  To run with your analogy. The defendant didn't drive the car he only gave them directions when they stopped in front of his house and asked where the bank is.

                  Moreover, as has been discussed above, we don't have a bank robbery we have civil issues. Unless they can show that someone used his site to commit a CRIMINAL act he can only be aiding, inducing civil crimes. After that they have to prove that he had intent to assist them in their criminal actions as opposed to his intent to assist in civil crimes.

                  Or better yet maybe his intent was to build this database of infringing links and hand it over to ICE.

                  Hopefully before they go to trial ICE can find one of those underground criminal pirate rings they are always talking about.

                   

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                    Jay (profile), Mar 10th, 2011 @ 8:50am

                    Thoughts on a criminal ring

                    I'm actually reading about that right now...

                    Those rings of terrorist organizations? They don't exist. They're made up to grant stronger enforcement.

                    Want to know what killed them? Competition in the digital distribution era:

                    Production costs
                    and profit margins on optical discs have plummeted, leading to a collapse in prices. In 2001,
                    quality DVDs typically cost five dollars or more on the street. In 2010, they are under a dollar
                    at retail in many parts of the world. Burners and blank discs are now commodity items, and
                    their greater availability has led to a massive expansion of local production, the displacement
                    of smuggling, and—in many countries—a reorganization of production around small-scale,
                    often family-based, cottage industry. Pressure on profit margins has increased, too, due to the
                    rise of the massive non-commercial sphere of copying and distribution on the Internet, which
                    has all but eliminated commercial optical disc piracy in high-income countries and appears
                    poised to do so further down the GDP ladder. Increasingly, commercial pirates face the same
                    dilemma as the legal industry: how to compete with free.


                    Where I got this is up for debate.

                    *whistles innocently*

                     

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            Rose M. Welch (profile), Mar 9th, 2011 @ 10:59am

            Re: Re: Re: Re: Just trying to help.

            Honest question.

            And an awesome one.

             

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          Modplan (profile), Mar 9th, 2011 @ 11:42am

          Re: Re: Re: Just trying to help.

          Nothing in that link says they are the same, it is merely a list of things you can be punished for.

          Also, in apparently catching what Mike said, you still apparently preferred to ignore it in favour of what suited your own agenda.

           

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      Anonymous Coward, Mar 9th, 2011 @ 9:00am

      Re:

      Now the AG just needs to prove beyond of a reasonable doubt that that guy knew about criminal infringement or that he was doing something wrong because so far they showed nothing to prove that and we all can laugh at ICE for being so dumb.

       

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      RD, Mar 9th, 2011 @ 9:15am

      Re:

      "Despite all of your ridiculous, brainless FUD, willfully linking and embedding to infringing content can be aiding and abetting criminal copyright infringement. What's horrifying is how you misrepresent the law to further your agenda."

      Ah, good, so we will be doing away with phone books, maps, and Google in short order then, right? Because, all of those things CAN BE ("can be aiding and abetting") used to aid someone in the commission of a crime.

      Right? I mean, you JUST SAID so, so you MUST support this line of reasoning. Otherwise, you are just interpreting the law however YOU see fit. Sound familiar?

       

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        Anonymous Coward, Mar 9th, 2011 @ 9:21am

        Re: Re:

        LOL! You don't really understand anything that you're talking about. Were those phone books, maps, or Google provided with the criminal intent to facilitate others to commit crimes? No.

         

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          The eejit (profile), Mar 9th, 2011 @ 9:26am

          Re: Re: Re:

          And how is that different from your blind assertion that this guy is aiding and abetting a criminal act? Google can clearly be used to infringe, and it makes profits too.

          Oh wait, Google could probably buy the entire legislature of the US, so the law doesn't apply. Try again.

           

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            Anonymous Coward, Mar 9th, 2011 @ 10:03am

            Re: Re: Re: Re:

            I can't tell if you guys are serious with this comparison or not, since it's so silly.

            Google automatically indexes everything on the web that it can. It doesn't differentiate.

            This guy set up a website where all he did was intentionally post links to and embed infringing works.

            It's not a question of whether either site can be used to infringe. It's a question of whether the site was set up with the purpose to facilitate infringement.

             

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              The eejit (profile), Mar 9th, 2011 @ 10:25am

              Re: Re: Re: Re: Re:

              But is linking directly facilitating infringement? Perhaps he wanted people to see what he'd paid for, perhaps he wanted to share, perhaps he's exactly as criminal as you claim.

              But to claim that he must be aiding criminals in doing so seems a stretch, given the information we have so far.

               

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              Steve, Mar 9th, 2011 @ 11:28am

              Re: Re: Re: Re: Re:

              It Shouldn't matter if he thought the material he was linking to was infringing. Someone can write a book about how to be a pedophile and the constitution protects that persons right to do so. Pedophilia is clearly illegal. It is unfortunate that there isn't a way to stop someone from writing something like this but to do so would erode our fundamental rights. The solution is to arrest the people posting the infringing material and the pedophiles. Then the other problems just kind of take care of themselves.

               

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                Anonymous Coward, Mar 9th, 2011 @ 8:33pm

                Re: Re: Re: Re: Re: Re:

                Actually Pedophilia is a sexual orientation and NOT itself illegal.
                Sexually (and any other) molestation of children is illegal.

                It had to be said. I defend peoples right to be aroused by whatever they fancy (even a tree or the smell of mouldy cheese). It's the actions they take they can be judged for.

                 

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              Anonymous Coward, Mar 9th, 2011 @ 3:30pm

              Re: Re: Re: Re: Re:

              Google automatically indexes everything on the web that it can. It doesn't differentiate.
              This guy set up a website where all he did was intentionally post links to and embed infringing works.
              It's not a question of whether either site can be used to infringe. It's a question of whether the site was set up with the purpose to facilitate infringement.


              I explained this to these idiots weeks ago.

              They're all willfully blind. This blog is nothing but a cesspool of silly, stupid, parasitic pirates.

               

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                idiot, Mar 9th, 2011 @ 3:43pm

                Re: Re: Re: Re: Re: Re:

                I was under the impression that the site was set up with the purpose of letting me know what sites had infinging content so I could avoid them.

                Sites like these make it easy for me to avoid acidentilly breaking the law. They are very helpful for ip prudes like myself.

                 

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                  Jose_X, Mar 10th, 2011 @ 12:06am

                  Re: Re: Re: Re: Re: Re: Re:

                  As importantly, the site also made it much easier for artists to fight back against the creation of more fans, buzz, and publicity.

                   

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                Anonymous Coward, Mar 9th, 2011 @ 8:51pm

                Re: Re: Re: Re: Re: Re:

                I explained this to that idiot weeks ago.

                He's willfully blind. His posts are nothing but a cesspool of silly, stupid, parasitic thoughts.

                 

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                techflaws.org (profile), Mar 10th, 2011 @ 2:05am

                Re: Re: Re: Re: Re: Re:

                So you fit right in. Welcome, shilltard.

                 

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      The eejit (profile), Mar 9th, 2011 @ 9:18am

      Re:

      1) there isn't actually an inducement as there is for other criminal offences, without twisting words.

      2) Note, there is nothing in the Copyright Act that allows for aiding and abetting. Unless there's something I don't know, you can't aid and abet criminal copyright infringement.

      3) see 2. The judge decided to allow a jury instruction. Nothing else.

       

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        Anonymous Coward, Mar 9th, 2011 @ 9:23am

        Re: Re:

        LOL! I provided several examples of people being charged and/or convicted of aiding and abetting criminal copyright infringement in the other thread. Try again.

        There doesn't need to be anything in the Copyright Act that specifically allows this, because aiding and abetting is fundamental to ALL criminal law.

        I love how you guys have no idea what you're talking about, but you pretend like you do. Classic.

         

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          The eejit (profile), Mar 9th, 2011 @ 9:36am

          Re: Re: Re:

          No, you cited a case where something was permitted, when it normally isn't. Inducement means 'A significant offer or act that promises or encourages' (Merriam-Webster Dictionary of Law)

          Where's the promise here? You were arguing that inducement and aiding and abetting were the same thing. Aiding and abetting normally occurs after the crime has been committed, right?

          So, if he is being charged with aiding and abetting criminal copyright infringement (via hotlinking), why have ICE and the DoJ not gone after those hosting the criminal material, subject to section 506?

           

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            Anonymous Coward, Mar 9th, 2011 @ 10:13am

            Re: Re: Re: Re:

            "or" = disjunctive. If X = Y or Z, pointing out a lack of Y does = a lack of X.

             

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            Anonymous Coward, Mar 9th, 2011 @ 10:14am

            Re: Re: Re: Re:

            I cited several cases, not just the one.

            It says "promises or encourages." So it can be one or the other. Here, it was encouragement, not a promise.

            I'm assuming ICE isn't going after those hosting the material because they are overseas. Once COICA is the law, that'll solve that problem.

             

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            Anonymous Coward, Mar 9th, 2011 @ 8:54pm

            Re: Re: Re: Re:

            "Aiding and abetting normally occurs after the crime has been committed, right?" Nope - it can be either or both.

            Unless it's of a fugitive.

             

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          Anonymous Coward, Mar 9th, 2011 @ 9:50am

          Re: Re: Re:

          LOL! The law is the law and if you want it changed then lobby congress. It's the LAW! LOL!

           

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      duffmeister (profile), Mar 9th, 2011 @ 9:25am

      Re:

      So where is the aiding and abetting charge?

      You can't make up a charge for a criminal case. I'd be OK with them charging him for aiding and abetting since then that would go to court and we would get a clear precedent set.

      What needs to happen is for both sides to use reason and law to back up their claims.

      Is it illegal to point at the crack house down the street and say "You can buy crack there"? That is all he really did. That is the closest real world example of what he did I can come up with. It shows a different location (server, crack house), distributor (other website owner, drug dealer), and even the link (hyperlink, pointing and saying).

      So does this have anything to do with copyright law? Not in my opinion. If you want to go the other route, I encourage it, as it helps establish a point of law for which to have a reasoned debate.

       

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      Mike C. (profile), Mar 9th, 2011 @ 10:00am

      Re:

      By your logic, you should now be in jail, to whit:

      Given: Your post copied text from Mike's original work above
      Given: IP maximalists love to claim that "fair use" is a defense, not a right.
      Given: A defense must be argued in a court of law and cannot be decided by the police or the general public
      Given: Copyright infringement and/or inducement is a jailable offense

      Result: Off to jail you go... :-)

       

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      Joe Dirt, Mar 9th, 2011 @ 10:20am

      Re:

      Not sure they mean the same thing... Can you define these better than a legal dictionary? Cause It looks like they DON'T mean the same thing.

      Induce: to persuade or influence someone to do something; to cause, bring about or give rise to something

      Aid and Abet: To assist another in the commission of a crime by words or conduct.

      The person who aids and abets participates in the commission of a crime by performing some Overt Act or by giving advice or encouragement. He or she must share the criminal intent of the person who actually commits the crime, but it is not necessary for the aider and abettor to be physically present at the scene of the crime.

      An aider and abettor is a party to a crime and may be criminally liable as a principal, an Accessory before the fact, or an accessory after the fact.

       

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        Anonymous Coward, Mar 9th, 2011 @ 10:27am

        Re: Re:

        I apologize for not being clear in my earlier post. Whether you aid, abet, and/or induce the criminal activity, you are liable as an accomplice. This makes you liable as if you had committed the criminal act yourself.

        You are right: aiding, abetting, and inducing are different things. My point was that any of those things makes you accomplice under 18 U.S.C. 2.

         

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          Anonymous Coward, Mar 9th, 2011 @ 11:00am

          Re: Re: Re:

          Let's go through this one step at a time. If all the defendant did was make note of the fact that there are copies of works located at ____________ then this isn’t inducement. More is required for inducement than mere discussion of a fact. Even when a party repeatedly requests that the defendant engage in criminal conduct, inducement is not established unless the requests are coupled with persuasive overtures. United States v. McKinley, 70 F.3d 1307

           

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            Anonymous Coward, Mar 9th, 2011 @ 11:25am

            Re: Re: Re: Re:

            "Let's go through this one step at a time. If all the defendant did was make note of the fact that there are copies of works located at ____________ then this isn’t inducement. More is required for inducement than mere discussion of a fact. Even when a party repeatedly requests that the defendant engage in criminal conduct, inducement is not established unless the requests are coupled with persuasive overtures. United States v. McKinley, 70 F.3d 1307"

            You can search, refine your search, search within a search, search within a website, search by file type... etc all within search engines such as google. How is that different? You can also find sites that indicate file sharing is both good and accepted behavior within google as well, how is that different? I can check out a book, or magazine from a public library that has info about file sharing and sites. That's ok?

            It's fine that you don't agree with file sharing or the "freetards". We will defend your right to disagree and have a real argument about these types of issues. But don't kid yourself, there are no innocent people on either side of this issue....

             

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              Anonymous Coward, Mar 9th, 2011 @ 1:09pm

              Re: Re: Re: Re: Re:

              As a note, I am not taking a side on this issue, simply pointing to some citations that illustrate a legal standard. I think inducement is harder to prove here than aiding and abetting, but I need more facts. Also, I think there ARE innocent people on both sides of the issue...there are also guilty people on both sides of the issue.

               

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          Anonymous Coward, Mar 9th, 2011 @ 11:21am

          Re: Re: Re:

          To charge him with aiding and abetting, the fact-finder must find he
          (1) associated himself with the unlawful venture
          (2) participated in it as something he wished to bring about
          (3) sought by his actions to make it succeed.
          United States v. Lewis, 593 F.3d 765, 769.
          Also the aider and abettor must share the criminal intent of the party he is aiding. United States v. Santana, 524 F.3d 851

          Aiding and abetting is easier then inducement it seems here. So who is the defendant aiding? Does he share the intent of the party who wants to use the work, or the party who wants to distribute the work?

           

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        Ben (profile), Mar 9th, 2011 @ 11:17am

        Re: Re:

        I shall take your definition of induce and say that ALL piracy is therefore induced by the RIAA/MPAA by their usage of outdated business models and overpriced product

        I didn't mean to pirate that Lady Gaga song! She induced me to because $15 a CD is too high!

         

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      DH's Love Child (profile), Mar 9th, 2011 @ 10:30am

      Re:

      If he aided and abetted others to violate those rights, then he is guilty as if he violated them himself

      IANAL, nor do I play on in the blogosphere, but if I recall correctly, in order for a charge of aiding and abetting a criminal act to stick, you have to successfully prove the criminal act first. If someone who actually KNOWS the law (not is a student), could illuminate me I would appreciate it.

      If that's the case though, they would have to show that the the underlying act DID actually occur (meaning criminal copyright infringement which has a much higher burden of proof).

       

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      Karl (profile), Mar 9th, 2011 @ 5:43pm

      Re:

      Oh, brother. Iit looks like we're going to have this same debate again...

      there is no inducement standard in criminal infringement

      This is an absolute lie, and you know it. Inducing is the same as aiding and abetting.


      Civil inducement is not the same as aiding and abetting. Grokster, for example, was found liable for "inducing" infringement (called "contributory" and/or "vicarious" infringement in Napster), but would probably not be guilty of aiding and abetting.

      That is what Mike was talking about, and he made it pretty clear:

      I could potentially see a civil charge against him using the court-created concept of "inducing" infringement (a concept that Congress rejected...), but there is no inducement standard in criminal infringement. It's possible that the feds could go with an aiding and abetting charge, but that requires a much higher standard[...]

      His statement was accurate. Stop arguing against straw men.

      Despite all of your ridiculous, brainless FUD, willfully linking and embedding to infringing content can be aiding and abetting criminal copyright infringement.

      I have never heard of a single person ever being convicted solely for linking to, or embedding, infringing content.

      On the other hand, Perfect 10 v. Google makes it clear that this is probably not infringement, criminal or otherwise:
      The Court concludes that in determining whether Google’s lower frames are a "display" of infringing material, the most appropriate test is also the most straightforward: the website on which content is stored and by which it is served directly to a user, not the website that in-line links to it, is the website that "displays" the content.

      This is called the "server test" for infringement, and it is the standard test for whether a website can be liable as a direct infringer.

      This case follows the ruling in Perfect 10 v. Cybernet Ventures:
      Based on the evidence before the Court it appears that Cybernet does not use its hardware to either store the infringing images or move them from one location to another for display. This technical separation between its facilities
      and those of its webmasters prevents Cybernet from engaging in reproduction or distribution, and makes it doubtful that Cybernet publicly displays the works... [Emphasis in the Google ruling's quote]

      Furthermore (from Perfect 10 v. Google again):
      Certain other decisions, some unpublished, do deal with traditional hyperlinking — i.e., rather than incorporating third-party content via in-line linking or framing, websites create hyperlinks that transport the user directly to the linked-to,
      infringing page. Each of these cases holds that such linking does not implicate any of the exclusive rights under copyright. [Emphasis mine]

      If you're curious, those cases are: Ticketmaster Corp. v. Tickets.com, Inc. (unpublished); Online Policy
      Group v. Diebold, Inc.; Bernstein v. JC Penney, Inc. (unpublished); and Arista Records, Inc. v. MP3Board, Inc. (unreported).

      Now, those websites could, possibly, still be held accountable for secondary liability - but, as Mike pointed out, there is no criminal secondary liability for copyright infringement. (Aiding and abetting is not the same as secondary liability.)

      Even if you wrongly believe there is, here's how the case ruled on "vicarious infringement:"
      Google does not exercise control over the environment in which it operates - i.e., the web. Google’s ability to remove a link from its search index does not render the linked-to site inaccessible. The site remains accessible both directly and indirectly (i.e., via other search engines, as well as via the mesh of websites that link to it). If the phrase "right and ability to control" means having substantial input into or authority over the decision to serve or continue serving infringing content, Google lacks such right or ability. [...] Google cannot shut down infringing websites or prevent
      them from continuing to provide infringing content to the world. [Emphasis mine]


      So, it looks like the only one spreading "ridiculous, brainless FUD" around here is you.

      If he aided and abetted others to violate those rights, then he is guilty as if he violated them himself. Cf. the U.S. v. Dove case I cited in the other thread.

      As I pointed out, the actions of the defendants in this case and the Dove case are substantially different. So much so, that Dove was also convicted of conspiracy and of direct infringement.

      (By the way - I got the Dove jury instructions from the denial of a motion for new trial. I've also found the denial of restitution. But I have not found a link to the case itself. Do you have one?)

      From the jury instructions in the Dove case:
      The aiding and abetting instruction required the jury to find that willful copyright infringement as charged was to be committed or was being committed and that he did some act knowingly and willfully to aid in the crime, with the intention of causing the crime to be committed. [Emphasis mine]

      Merely linking to infringing content, whether inline or not, does not do this. If it did - as Marcus pointed out - you yourself would be guilty of aiding and abetting, simply by posting a link to McCarthy's site in these comments.

      For how and why it does not, there's a long but informative chart on Page 39 of the P10 v. Google ruling, comparing Google's case with the Napster case. On the question of "material contribution," the court concludes:
      (Google) has not induced or encouraged such websites to serve infringing content in the first place. Moreover, it would be a "gross generalization that cannot withstand scrutiny" to argue that "supplying the 'means' to accomplish an infringing activity and [even] encouraging that activity through advertisement are sufficient to establish liability for copyright infringement." [...] Such websites existed long before Google Image Search was developed and would continue to exist were Google Image Search shut down. [Emphasis in original]

      In every single comparison, McCarthy's site behaves more like Google than like Napster.

      There is another issue to consider. Previously, I had believed that McCarthy's website was ineligible for 17 USC 512 protection. Mostly I was concerned with 512(c), which deals with sites that host user content (such as RapGodfathers). However, there's also 512(d), "Information Location Tools." I had previously believed that this applied only to search engines and the like. But I think I was wrong:
      A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link [...] [Emphasis mine]

      It seems like this could also apply to what used to be called "link farms," and what ICE calls a "linking website." This is what McCarthy's website is, by ICE's own definition. Could his site possibly fall under this category?

      If so, then McCarthy should be neither liable nor guilty - assuming he followed those rules, of course.

       

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        Anonymous Coward, Mar 9th, 2011 @ 6:15pm

        Re: Re:

        Swing and a miss.

        Inducement of a crime is a crime under 18 U.S.C. 2. Mike stated that "there is no inducement standard in criminal infringement," and that is a lie.

        Really, you think McCarthy and his website are a "service provider" under Section 512? LOL! Try again.

        Please stop playing internet lawyer, Karl. I can't take it.

         

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          Marcus Carab (profile), Mar 9th, 2011 @ 6:19pm

          Re: Re: Re:

          Holy shit. That is the only response you have to that long, carefully thought-out and heavily cited argument from Karl?

          I'm sorry but... do you really think that you come out looking like the one worth listening to here?

           

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            Anonymous Coward, Mar 9th, 2011 @ 6:23pm

            Re: Re: Re: Re:

            I could dissect every single sentence that Karl wrote and explain how he's wrong, but Karl will just go on posting his nonsense. It's not worth it. Sorry. It amazes me how sure he is that he's right, when time and again all he does is prove that he doesn't grasp the fundamentals.

             

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              Marcus Carab (profile), Mar 9th, 2011 @ 6:29pm

              Re: Re: Re: Re: Re:

              I could dissect every single sentence that Karl wrote and explain how he's wrong

              How convincing.

              but Karl will just go on posting his nonsense

              I'm looking at this thread, and I see one really awesome and thorough analysis from Karl, fully cited, examining several angles of this case - then I see a bunch of comments of you repeating the exact same statement about Aiding & Abetting over and over again, not responding to anything anyone says to refute it. So I'm pretty sure you're the one who intends to just go on posting nonsense no matter what you hear.

              It amazes me how sure he is that he's right, when time and again all he does is prove that he doesn't grasp the fundamentals.

              I think you are confusing "fundamental" with "simplistic" - it's pretty obvious to absolutely anyone reading this that Karl knows way more about the topic than you.

               

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                Anonymous Coward, Mar 9th, 2011 @ 6:33pm

                Re: Re: Re: Re: Re: Re:

                LOL! Whatever, Marcus. You're going to believe whatever you want to believe. If you believe Karl understands the law, then good on ya.

                 

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                Karl (profile), Mar 9th, 2011 @ 11:43pm

                Re: Re: Re: Re: Re: Re:

                it's pretty obvious to absolutely anyone reading this that Karl knows way more about the topic than you.

                I don't believe this, actually. I think this A.C. knows perfectly well that there is plenty of case law that makes both the seizures, and the case itself, legally questionable.

                Instead, I think he's being dishonest. He knew Mike didn't ever say "there's no such thing as aiding and abetting infringement," he's just twisting Mike's words. He knew about Perfect 10 v. Google, he just completely ignored it. He knows there are significant problems with these ex parte seizures (like the fact that 512(j)(3) expressly prohibits them, or the First Amendment limitations), he's deliberately ignoring them.

                And whenever anyone brings any of them up, he goes off on tangents, brings in hundred-year-old case law, and gets bogged down in irrelevant details. All with a healthy sprinkling of "LOL" and sarcastic, personal attacks.

                It's certainly possible to debate this. In fact, I think that were this a civil case, McCarthy would almost certainly be liable for contributory infringement; nor do I think McCarthy actually satisfied the rules required in 512. I also think this isn't enough for a criminal conviction, and it doesn't absolve ICE of prior restraint (which is worse for society than piracy itself).

                But he's not here for debate. He's here on a personal, anti-Mike quest, fueled by sheer vitrol and personal hatred of anything he believes should be piracy. The spouting of case law is just a cover.

                Sadly, I have a strong suspicion who it is. And it's pretty disappointing.

                Of course, I have reasons for my opinions too. (Hint: it's not that I'm "pro-piracy.") I prefer to take a different approach. Well, except for this post... so I should probably stop now.

                 

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                  Anonymous Coward, Mar 10th, 2011 @ 2:44am

                  Re: Re: Re: Re: Re: Re: Re:

                  Google does not exercise control over the environment in which it operates - i.e., the web.

                  This is a key point; Google does not discriminate in its searches (unless already directed to do so, i.e., child porn, bomb making, etc.). This removes Google from liability because their stated use is to search the internet as thoroughly as possible, for anything and everything.

                  However McCarthy did indeed discriminate in his search function, and that is likely to be his downfall.

                   

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                    vivaelamor (profile), Mar 10th, 2011 @ 5:57am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "However McCarthy did indeed discriminate in his search function, and that is likely to be his downfall."

                    Given your lack of explanation I have to assume that you're referring to the requirements of 512(k)(1)(A). But the section Karl referenced uses 512(k)(1)(B), which doesn't have such narrow requirements. If you meant something else then please explain further.

                     

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                    Karl (profile), Mar 10th, 2011 @ 10:15pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    However McCarthy did indeed discriminate in his search function, and that is likely to be his downfall.

                    Like I said, I doubt he actually followed the rules in Section 512. I think a judge will rule that he definitely was "aware of facts or circumstances from which infringing activity is apparent."

                    This decision, of course, is only possible to make after all the facts are presented to the court, including the defendant's fact. Making the seizure of his domain forbidden under 512(j)(3).

                    There are more issues here, of course.

                    Under the Perfect 10 v. Google et. al. standard, he is absolutely not the primary infringer. Which means he can only be charged with "aiding and abetting" the primary infringement. Which means that the primary infringement must be criminal for him to "aid and abett" it, and also that the primary infringement would be impossible (or highly unlikely) to occur without his aiding and abetting.

                    That's going to be next to impossible to prove, because it's ridiculous, which is why I think criminal charges are dead in the water. Civil infringement, however, allows for secondary liability, which he could (and almost certainly would) be found guilty of.

                    I suspect the parties on who he infringed - the plaintiffs in a civil case - know this is true. They just don't want to spend money suing folks who don't actually cost them anything. So they give enough money to Congress to convince the U.S. government (and us taxpayers) to foot the bill instead.

                    They're looking at all those cases that wouldn't even survive discovery in a civil case, and fobbing them off on the government. And if the whole operation fails, what do they care? They're not liable for damages. They didn't have to spend all that money on lawyers. Hell, merely the fact that these people were charged is enough to paint a big red A on their chest. They've got everything they've always wanted, without spending a dime, and with the full cooperation of an entity that has access to more seizure statutes than they do, and more money (ours) than they could spend in a lifetime.

                    This whole thing is a plain abuse of the system. If the government was actually sane and rational, they'd see right through it. But when was that ever the case?

                     

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              The eejit (profile), Mar 10th, 2011 @ 3:44am

              Re: Re: Re: Re: Re:

              Then do so, instead of blindly mocking. Cite cases, like Karl has done that refute his points. I mean, if it's so east, it won't take much time, right?

               

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          vivaelamor (profile), Mar 9th, 2011 @ 6:37pm

          Re: Re: Re:

          'Inducement of a crime is a crime under 18 U.S.C. 2. Mike stated that "there is no inducement standard in criminal infringement," and that is a lie.'

          How does your statement disprove his statement? It seems like a bizzare non sequitur. He said there is no inducement standard, not that inducement isn't a crime.

          'Really, you think McCarthy and his website are a "service provider" under Section 512? LOL! Try again.'

          Care to share the reason why you think they aren't?

           

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            Anonymous Coward, Mar 9th, 2011 @ 6:42pm

            Re: Re: Re: Re:

            Mike's statement was that there is no inducement standard for criminal infringement. There is. He's wrong. It's simple.

            "Service provider" is defined in 17 U.S.C. 512(k), and that definition is examined in the case law.

            Don't ask me though. Ask Karl, the legal expert.

             

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              vivaelamor (profile), Mar 9th, 2011 @ 7:21pm

              Re: Re: Re: Re: Re:

              "Mike's statement was that there is no inducement standard for criminal infringement. There is. He's wrong. It's simple."

              Then why not tell us about the standard instead of referring to apparently irrelevant things?

              '"Service provider" is defined in 17 U.S.C. 512(k), and that definition is examined in the case law.'

              From In re Aimster: “A plain reading of [17 U.S.C. § 512(k)] reveals that ‘service provider’ is defined so broadly that we have trouble imagining the existence of an online service that would not fall under the definitions….”

              Do you have an example that would suggest 512(k)(1)(B) wouldn't apply in this case?

              "Don't ask me though. Ask Karl, the legal expert."

              I hope you're not wondering why people may not be taking you seriously.

               

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              Anonymous Coward, Mar 9th, 2011 @ 8:47pm

              Re: Re: Re: Re: Re:

              Don't ask me though. Ask Karl, the legal expert.

              FIFY

               

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                Anonymous Coward, Mar 9th, 2011 @ 8:53pm

                Re: Re: Re: Re: Re: Re:

                my bad. still learning. i had sarc marks before and after that sentence. So i'll do it my way

                This is an attempt at sarcasm --> "Don't ask me though. Ask Karl, the legal expert."

                 

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          Any Mouse (profile), Mar 9th, 2011 @ 7:22pm

          Re: Re: Re:

          Hmm... Let's lok at this...

          Karl:
          AC: LOL! WRONG!

          Who to believe? Certainly not you, since he shows cases that show you to be wrong, and you aren't actually showing why you believe he's wrong.

           

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          Karl (profile), Mar 9th, 2011 @ 8:23pm

          Re: Re: Re:

          Inducement of a crime is a crime under 18 U.S.C. 2. Mike stated that "there is no inducement standard in criminal infringement," and that is a lie.

          Mike explicitly differentiated between civil inducement and aiding and abetting. Then said that the civil inducement standard - which is a secondary liability standard - is absent in criminal infringement. As far as I know, this is an accurate statement: there is no secondary liability standard in criminal infringement.

          That's what he meant, you know it, and you keep lying. It really doesn't help your case.

          Really, you think McCarthy and his website are a "service provider" under Section 512? LOL! Try again.

          I don't know, that's why I asked a question. You know, that thing with the squiggly mark at the end.

          Here's the definition, from 512(k)(1):
          Service provider.—
          (A) As used in subsection (a) ["Transitory Digital Network Communications"], the term “service provider” means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.
          (B) As used in this section, other than subsection (a), the term “service provider” means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A).

          That definition includes not just ISP's, but such diverse online entities as blogs, search engines, sites with forums, video streaming sites, and news aggregators. Pretty much anything that includes third-party content. Would McCarthy's video links count as an "online service?" I'm not sure I believe it either, but it's something to at least consider.

          Please stop playing internet lawyer, Karl.

          Well, jeez Louise, maybe I wouldn't have to if you were better at it. I mean, Perfect 10 v. Google is more relevant to this case than U.S. v. Dove. But if I hadn't mentioned it, would you?

           

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            Karl (profile), Mar 9th, 2011 @ 8:34pm

            Re: Re: Re: Re:

            I'm not sure I believe it either, but it's something to at least consider.

            Ha. I just now saw the quote that "vivaelamor" posted. It seems that district judges believe it more than I do.

             

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    BongoBern (profile), Mar 9th, 2011 @ 9:09am

    Linking to Feds

    Trust the government...wait! DON'T trust the government.

     

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    AJ, Mar 9th, 2011 @ 9:19am

    Well...

    Why hasn't anyone arrested google, yahoo, their isp's? They know they have infringing material, and they know they link to it, why are they not in jail? I know damn well they make money from it with the adds on their search engine! They are obviously criminals! According the the quote below, they are guilty as hell! So is every isp, search engine, online locker, etc company on the internet! String em all up immediatly before the freetards win!


    "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. 2:"

     

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      Anonymous Coward, Mar 9th, 2011 @ 11:32am

      Re: Well...

      It seems that the intent of Google is to catalogue and organize all information on the web, not just the infringing info. This is arguably one element that helps them stay on the legal side

       

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        Anonymous Coward, Mar 9th, 2011 @ 9:20pm

        Re: Re: Well...

        I enjoy seeing the new AC's (I know I'm an AC) who have a legal bent (or are lawyers) showing up on this site. It shows the arguments presented here are threatening and being taken seriously.

        I am just glad that posts like this expose weaknesses in laws that should be changed.

        When you can get past the "you broke our law" bs and see the opportunities that mass distribution can do for artists/actors/producers/society the faster we can enjoy what humanity is.

         

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    Gwiz (profile), Mar 9th, 2011 @ 9:27am

    So, as expected, the specific charges are incredibly questionable and seem to be based on a theory of copyright law that has been completely made up by Homeland Security and the Justice Department.

    I agree, this seems to be untried legal theory here.

    Furthermore, since this isn't a new law passed by Congress, it's stretching other existing laws into areas were they possibly shouldn't be via questionable legal theory, how could have Mr. McCarthy adapted to remain legal without precedence to rely on?

    Presuming (don't know - not a mind reader) the Mr. McCarthy's intent was operate a website that perhaps pushed to the edge of legal, but was still remaining legal (at the very least thinking what he was doing wasn't a criminal offense), how could he foresee that due to some untried legal theory that suddenly, without warning what he was doing was a criminal offense?

     

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      Jay (profile), Mar 9th, 2011 @ 10:10am

      Re:

      I think that this is where COICA was supposed to come in and allow the Feds to push all of this. But it seems to be telling that more and more resistance is backing up ICE into a corner.

       

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    Property Management Software, Mar 9th, 2011 @ 9:30am

    It can't be

    First no one can get the original source, some time original source index after the copy right.

     

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    Anonymous Coward, Mar 9th, 2011 @ 11:01am

    Whatever harm if any that man caused it obviously is not enough.

    Everybody should pirate and don't give a dime to the industry.

     

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    Eric, Mar 9th, 2011 @ 11:44am

    I can see both sides...

    Here is my only concern, and why I think the website could be guilty. If you drive someone to a robbery, you are an accomplice. So in a way I agree that he is guilty, using that example.

    BUT.. as everyone has pointed out.. just pointing someone in the direction of something that is illegal, doesn't mean you've done something bad. Anarchist Cookbook told people how to do lots of illegal things, but is perfectly legal.

    The problem comes in that the laws aren't always black and white and it just depends on who is interpreting them. That's why there is such a big fight on who gets into the supreme court. The law may be the law, but it's how it's interpreted that matters.

    I'm not sure about any of it, but I think as Mike has said in the past, just because you FEEL it's wrong / bad doesn't make it so and doesn't make it illegal. My gut feeling is that file sharing ( i.e. ripped cd's ) is bad and wrong.. but according to the law it is not theft. I just don't know and that's why I like reading the comments here, there are so many different opinions and arguments to read and comprehend.

     

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    Irate Pirate, Mar 9th, 2011 @ 12:07pm

    Some inducement questions...

    If I went to his server and clicked a link he provided, but then didn't download anything from the server I willingly and knowingly chose to go to... is the link provider still guilty of aiding and abetting?

    If I live in a country whose copyright laws differ from those of the US, where it isn't a crime to follow links or download anything, and I follow a link to a website with copyrighted material and download something, is the link provider still guilty of aiding and abetting me?

    I think these questions are important and need to be answered if we're really going to be convinced to go with the aiding and abetting line of reasoning.

    PS: Is inducement the same as aiding and abetting? I've always seen the two as having different definitions in my mind. For me inducement is when someone tries to persuade someone to do something they wouldn't otherwise have done on their own, while aiding and abetting is to help someone carry out a crime, usually called the accomplice.

     

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    Anonymous Coward, Mar 9th, 2011 @ 12:36pm

    but there is no inducement standard in criminal infringement.

    Mike, this is patently false. There are numerous cases cited showing that aiding and abetting criminal copyright infringement has been around for decades. Either address the legal issues, or stop making categorically false statements. It's intellectually dishonest.

    Here are the cases:

    http://www.techdirt.com/articles/20110303/16584013356/ice-arrests-operator-seized-domain-c harges-him-with-criminal-copyright-infringement.shtml#c3970

     

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      Marcus Carab (profile), Mar 9th, 2011 @ 12:43pm

      Re:

      Aiding & Abetting != Inducing.

      They are two similar but separate legal concepts. And nobody denied that aiding & abetting might apply (that is, if there is any crime to aid and abet happening here - which is another important question)

       

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        Anonymous Coward, Mar 9th, 2011 @ 12:57pm

        Re: Re:

        Either way, you're an accomplice and you're liable as if you had committed the crime yourself.

         

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          Anonymous Coward, Mar 9th, 2011 @ 1:11pm

          Re: Re: Re:

          After seeing the filing, I believe that man will walk away free, and I will be here to haunt you for the rest of your natural life.

           

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            Anonymous Coward, Mar 9th, 2011 @ 1:20pm

            Re: Re: Re: Re:

            After seeing the filing, I believe that man will walk away free, and I will be here to haunt you for the rest of your natural life.

            LMFAO!

             

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        Anonymous Coward, Mar 9th, 2011 @ 1:09pm

        Re: Re:

        And nobody denied that aiding & abetting might apply

        Um, yes, Mike did here: "there's simply no such thing as criminal contributory infringement."

        And, aiding and abetting is the counterpart of inducement/contributory liability on the criminal side, which is what we're talking about here, and what the defendant was charged with.

         

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          Anonymous Coward, Mar 9th, 2011 @ 1:17pm

          Re: Re: Re:

          I think some of the confusion is whether it's aiding and abetting or inducement. "Aiding and abetting" is shorthand for saying someone is an accomplice. An accomplice, according to 18 U.S.C. 2, is one who aids, abets, counsels, commands, induces or procures the crime.

          It doesn't matter if he aided, abetted, counseled, commanded, induced, and/or procured the crime. It only matters that he's an accomplice under at least one of those theories of complicity.

           

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            vivaelamor (profile), Mar 9th, 2011 @ 1:53pm

            Re: Re: Re: Re:

            '"Aiding and abetting" is shorthand for saying someone is an accomplice'

            That's an interesting notion of shorthand.

             

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              Anonymous Coward, Mar 9th, 2011 @ 2:01pm

              Re: Re: Re: Re: Re:

              It's shorter than saying "aided, abetted, counseled, commanded, induced, and/or procured the crime."

               

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                vivaelamor (profile), Mar 9th, 2011 @ 2:14pm

                Re: Re: Re: Re: Re: Re:

                'It's shorter than saying "aided, abetted, counseled, commanded, induced, and/or procured the crime."'

                Indeed it is. I think you missed my point. Oh well, it wasn't a serious one.

                 

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          Marcus Carab (profile), Mar 9th, 2011 @ 1:49pm

          Re: Re: Re:

          Aiding & abetting is a general legal concept that applies to every crime. Contributory infringement is a specific concept laid out for copyright - and one that, if I understand correctly, exists only in case law and not in statute. (it has been codified in the U.S. for patent and trademark infringement, but not copyright)

          As I said, they are similar, but Mike's statement is entirely accurate and quite important: there is no contributory infringement on the criminal side. Aiding and abetting is different: it requires proof of a crime having been committed - so aiding and abetting copyright infringement requires proof of CRIMINAL infringement, which has a very high bar. Contributory infringement can be alleged (a civil action) whenever infringement occurs, but it is not a crime.

          If there were such a thing as criminal contributory infringement, it would be possible to charge someone with a crime for assisting/inducing non-criminal infringement. That is not the case. Instead, the law allows for aiding and abetting - which requires proof of an original crime.

           

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            Anonymous Coward, Mar 9th, 2011 @ 2:06pm

            Re: Re: Re: Re:

            In any event, they charged him with criminal infringement of copyright under 17 USC 506 and 18 USC 2319: http://act.demandprogress.org/sign/dhscomplaint/

             

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              vivaelamor (profile), Mar 9th, 2011 @ 2:11pm

              Re: Re: Re: Re: Re:

              "In any event, they charged him with criminal infringement of copyright"

              Isn't that the whole point of this story?

               

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                Anonymous Coward, Mar 9th, 2011 @ 2:18pm

                Re: Re: Re: Re: Re: Re:

                Do you add anything to these discussion besides snarky comments?

                 

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                  vivaelamor (profile), Mar 9th, 2011 @ 3:18pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "Do you add anything to these discussion besides snarky comments?"

                  Is that a rhetorical question? I would hate to spoil it by answering.

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 4:35pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    I'll take that as a no.

                     

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                      vivaelamor (profile), Mar 9th, 2011 @ 4:48pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "I'll take that as a no."

                      Ditto.

                      See what I did there?

                      Seriously though, if you want to know whether I add anything to these discussions then you are free to read my comment history (a courtesy I shall point out that I am unable to pay you). I would have liked to be more involved in this one but, alas, was rather late in arriving.

                       

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              Marcus Carab (profile), Mar 9th, 2011 @ 3:54pm

              Re: Re: Re: Re: Re:

              Well that's the funny thing - which I'm just realizing now. I'm pretty sure the whole Aiding & Abetting thing was a canard made up by some AC or another in response to Mike's earlier assertion that a direct criminal infringement charge will never stick, and there is no such thing as a criminal inducement charge.

              Has aiding and abetting ever even been mentioned by ICE? I don't actually think it has...

              If I'm right then I have to say: well played, whoever started this! It's like a reverse strawman! You set up a totally false argument for your own side so that we would waste a bunch of time debunking it... fucking brilliant!

               

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                Anonymous Coward, Mar 9th, 2011 @ 4:05pm

                Re: Re: Re: Re: Re: Re:

                Well that's the funny thing - which I'm just realizing now. I'm pretty sure the whole Aiding & Abetting thing was a canard made up by some AC or another in response to Mike's earlier assertion that a direct criminal infringement charge will never stick, and there is no such thing as a criminal inducement charge.

                Has aiding and abetting ever even been mentioned by ICE? I don't actually think it has...

                If I'm right then I have to say: well played, whoever started this! It's like a reverse strawman! You set up a totally false argument for your own side so that we would waste a bunch of time debunking it... fucking brilliant!


                Nope. It's right there on the front page of the complaint that Mike embedded. There are three alleged violations, the last one being 18 U.S.C. 2.

                 

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                  vivaelamor (profile), Mar 9th, 2011 @ 4:17pm

                  Re: Re: Re: Re: Re: Re: Re:

                  "Nope. It's right there on the front page of the complaint that Mike embedded. There are three alleged violations, the last one being 18 U.S.C. 2."

                  Fair enough, so ICE did bring it up.

                   

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                    Anonymous Coward, Mar 9th, 2011 @ 4:24pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    It's the DOJ, not ICE.

                     

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                      vivaelamor (profile), Mar 9th, 2011 @ 4:30pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "It's the DOJ, not ICE."

                      I'm unsure what you mean. Didn't ICE write the complaint?

                       

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                      Anonymous Coward, Mar 10th, 2011 @ 2:51am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I was, frankly, surprised to see this as a multiple count indictment. Generally speaking, the more counts DOJ comes at a defendant with, the longer they would like to lock them up. Perhaps they are trying to send a message, but this poor fellow is almost certainly looking at jail time.

                       

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                    Marcus Carab (profile), Mar 9th, 2011 @ 4:31pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Ah, indeed they did. I thought I read that somewhere at first but went searching and couldn't find it. I am just a thinker, not a lawyer, so I'm not as quick at connecting the numerical citations to the laws themselves :)

                     

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                vivaelamor (profile), Mar 9th, 2011 @ 4:12pm

                Re: Re: Re: Re: Re: Re:

                "If I'm right then I have to say: well played, whoever started this! It's like a reverse strawman! You set up a totally false argument for your own side so that we would waste a bunch of time debunking it... fucking brilliant!"

                That's why I liked your earlier post. It headed off further confusion by avoiding ambiguity and providing a detailed explanation. Sure, that takes longer, but if someone had done it in the first place then there might have been a lot fewer comments.

                 

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            vivaelamor (profile), Mar 9th, 2011 @ 2:09pm

            Re: Re: Re: Re:

            Refreshing clarity to an otherwise haphazard comments section.

             

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          The eejit (profile), Mar 9th, 2011 @ 2:08pm

          Re: Re: Re:

          Do you actually know what's required to be criminally liable for copyright infringement, as opposed to civilly? Every single person on here would be criminally liable if 506 was applied literally. The only question would be jurisdiction.

           

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      Anonymous Coward, Mar 9th, 2011 @ 2:49pm

      Re:

      Quit harping about these cases.

      First, all except one predate 1976. When Congress enacted the 1976 Act THEY LEFT OUT the language in the 1909 Act about aiding and abetting. LEFT IT OUT. Any talk of aiding and abetting in those cases is not good law anymore. That Congress LEFT IT OUT makes it pretty clear they didn't want that to be a claim anymore.

      Second, as to Sachs decision from 1986, it was clear that the defendant there DIRECTLY INFRINGED the copyrights at issue (he and his buddy were selling bootleg movies). The conspiracy charge (which is what it was if you read the case and is different from aiding and abetting) was tacked on to stick it to the guy.

      Got anything else?

       

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        Anonymous Coward, Mar 9th, 2011 @ 3:00pm

        Re: Re:

        Do you think there's no such thing as being an accomplice to criminal copyright infringement? Is that your point?

         

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          Anonymous Coward, Mar 9th, 2011 @ 3:39pm

          Re: Re: Re:

          Here is a guy that linked to stuff that other people put online. That is not covered by any accomplice/secondary liability theory. That is my point.

          Copyright only becomes criminal under the specific rules of the Copyright Act and criminal liability needs to analyzed in that context, not in the context of criminal law generally. For instance, criminal infringement is not also wire fraud, because that it beyond what the Copyright Act allows.

           

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            Anonymous Coward, Mar 9th, 2011 @ 3:58pm

            Re: Re: Re: Re:

            He linked to stuff with the intent to facilitate criminal infringement. That's aiding and abetting criminal copyright infringement. You look to the Copyright Act for the underlying offense, but accomplice liability still attaches under 18 U.S.C. 2 and under criminal law generally. There is no copyright exception to accomplice liability. I cited the 2008 case of U.S. v. Dove to prove this point.

             

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              Marcus Carab (profile), Mar 9th, 2011 @ 4:01pm

              Re: Re: Re: Re: Re:

              Which kind of goes back to my earlier point: there is no crime for him to aid and abet, until someone proves that either the uploaders or the users of his site were themselves engaged in criminal infringement, which seems unlikely.

              As it stands, he has been directly charged with criminal infringement himself. If that charge doesn't stick, we will see what they try next - it could be aiding and abetting I suppose, but to my knowledge that hasn't been mentioned.

               

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                Mike Masnick (profile), Mar 9th, 2011 @ 4:10pm

                Re: Re: Re: Re: Re: Re:

                Which kind of goes back to my earlier point: there is no crime for him to aid and abet, until someone proves that either the uploaders or the users of his site were themselves engaged in criminal infringement, which seems unlikely.

                This is the key point, and I'm glad it's being discussed. They can't charge him with accomplice liability if no crime was actually committed. And they haven't proved a crime. At all.

                That's a pretty big issue.

                 

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                  Anonymous Coward, Mar 9th, 2011 @ 4:21pm

                  Re: Re: Re: Re: Re: Re: Re:

                  They can't charge him with accomplice liability if no crime was actually committed. And they haven't proved a crime. At all. That's a pretty big issue.

                  Faith-based FUD. You have no idea what the investigation has turned up. Obviously they are planning on proving an underlying crime if they're claiming he violated 18 U.S.C. 2.

                   

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                    vivaelamor (profile), Mar 9th, 2011 @ 4:35pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "Faith-based FUD. You have no idea what the investigation has turned up. Obviously they are planning on proving an underlying crime if they're claiming he violated 18 U.S.C. 2."

                    Mike was pointing out that they can't do something unless something else is true, which was a perfectly accurate statement. You, on the other hand, are making an outright assumption and yet have the gall to claim he is the one basing things on faith.

                     

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                      Anonymous Coward, Mar 9th, 2011 @ 9:10pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      It isn't hard to prove.

                      You summon the rights holder.

                      "Did you permit this usage?"

                      "no".

                      "So the feed is illegal?"

                      "yes".

                      End discussion. The illegal act has been shown (without having to actually bring the case, there is no requirement for conviction, only proof of the existing crime). Then you move with "aiding and abetting" and it's all done.

                      Thanks for playing Techdirt FUD, you can pick up your biodegradable t-shirt from the usual sources.

                       

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                      •  
                        icon
                        The eejit (profile), Mar 10th, 2011 @ 12:18am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        No, you moron! Criminal copyright infringement has a specific meaning under section 506: infringement of copyright. IT's actually remarkably specific. Go take a look.

                         

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                      •  
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                        Mike Masnick (profile), Mar 10th, 2011 @ 1:34am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        It isn't hard to prove.

                        You summon the rights holder.

                        "Did you permit this usage?"

                        "no".

                        "So the feed is illegal?"

                        "yes".

                        End discussion. The illegal act has been shown (without having to actually bring the case, there is no requirement for conviction, only proof of the existing crime). Then you move with "aiding and abetting" and it's all done.


                        As per usual, you seem quite confused. What you have described *might* be *CIVIL* infringement, but that can only be established at trial, as there may be all sorts of defenses (fair use, proof of authorization, etc.).

                        But nothing in what you said above proves *criminal* copyright infringement, which also needs a trial for proof *AND* more importantly has a much higher bar where very specific things need to be proven, none of which you mentioned.

                        I'm serious here: you are 100% wrong in your claim. You can admit that you made a mistake here. In fact, that would be best. But, like other conversations, why do I expect you'll double down with even more ignorance?

                         

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                        Not an Electronic Rodent (profile), Mar 10th, 2011 @ 6:18am

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        I know I've come VERY late to this discussion but I just couldn't ignore this one because OMG!
                        It isn't hard to prove.
                        You summon the rights holder.
                        "Did you permit this usage?"
                        "no".
                        "So the feed is illegal?"
                        "yes".
                        End discussion. The illegal act has been shown (without having to actually bring the case, there is no requirement for conviction, only proof of the existing crime). Then you move with "aiding and abetting" and it's all done.
                        So you're saying that the legal standard for deterimining guilt is in fact asking an interested party? Wow. SO you don't need to establish at all whether the party you asked actually owned the content in question? You don't need to ask the accused whether they think there was an agreement to distribute the content, or whether it had been supplied by another source they had reason to believe was legal? You don't need to investigate anything beyond asking the person who claims rights over the content whether or not someone they can extract cash from is guilty or not? Just "He dun it Your Honour" and straight off to jail.

                        That's excellent. I can accuse you of having infringed here upon my copyrighted work (doesn't really matter what, I don't have to demonstrate ownership after all) and have you carted of to jail? Sounds like a winner to me. Then I can also sue you and techdirt (oo as direct infringers too probably so the same lack of evidence applies, brilliant) for a gazillion pounds. Score!

                         

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                  •  
                    icon
                    Marcus Carab (profile), Mar 9th, 2011 @ 4:36pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Now I'm curious... are there any examples of the criminal prosecution of people for aiding & abetting taking place before any attempt to prosecute the original criminal?

                     

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                    •  
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                      vivaelamor (profile), Mar 9th, 2011 @ 4:54pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      This might not be exactly what you're looking for, but may be helpful.

                       

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                      •  
                        identicon
                        Anonymous Coward, Mar 9th, 2011 @ 11:45pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        Thanks for that link viva. Doesn't that case suggest that the defendant here can be held liable for aiding and abetting infringement without an actual court determination of the direct infringement by others?

                         

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                        •  
                          icon
                          vivaelamor (profile), Mar 10th, 2011 @ 5:50am

                          Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                          "Doesn't that case suggest that the defendant here can be held liable for aiding and abetting infringement without an actual court determination of the direct infringement by others?"

                          Yes, but as Mike keeps pointing out that would rely on them proving a criminal case, which would seem rather hard when those supporting the charge can't even seem to decide what the actual crime was.

                           

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          •  
            identicon
            Anonymous Coward, Mar 10th, 2011 @ 2:59am

            Re: Re: Re: Re:

            He will lose the charge based on distribution. The intent is too obvious. It will be interesting though to see if new caselaw develops from the other charges.

             

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  •  
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    Thomas (profile), Mar 9th, 2011 @ 1:33pm

    To the justice..

    department and "Homeland Security", infringing content is far more dangerous to the U.S. than a terrorist planning something like a nerve gas attack on the U.S. This is what happens when the government is controlled by corporations who are only interested in profit and not the safety of U.S. citizens.

    After all, a nerve gas attack probably wouldn't impact profits for entertainment industry executives.

     

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    •  
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      Marcus Carab (profile), Mar 9th, 2011 @ 3:59pm

      Re: To the justice..

      well, if I'm reading the propaganda correctly, a nerve gas attack on the U.S. would likely have been funded by piracy!!!

       

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  •  
    icon
    hmm (profile), Mar 9th, 2011 @ 4:24pm

    Well...

    1. Guy links to "infringing" content or shows where it can be obtained
    2. Feds say this is naughty and illegal and he should be sent to bed without supper
    3. Judge realizes that in their evidence, the Feds provide a "link" to the guys website where linking is a sin
    4. Judge says "linking to linked content that is held to be infringement is also infringement". Judge bitchslaps the Feds
    5. 2nd Judge says the first judge in his summary provided links to links that link to linked infringing content.......
    6. Many years pass, Entire US court system is turned over to trying to find an end to the case, which is now four hundred thousand trillion "linkings" deep......

    Can you say Hoisted by your own Petard?

     

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  •  
    identicon
    sumquy, Mar 9th, 2011 @ 4:26pm

    is it possible to aid and abet a crime with an anonymous party or parties? wouldn't a prosecutor have to prove some kind of connection between the aider and the abettee?

    seems kind of a stretch to say he aided, someone he never met or spoke to, in the commission of a crime.

     

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  •  
    identicon
    sumquy, Mar 9th, 2011 @ 4:32pm

    actually now that i think about it it's pretty funny.

    he aided and abetted some people who didn't commit a crime (those who watched the stream), but didn't "aids, abets, counsels, commands, induces or procures its commission"
    the people who actually committed the crime. (those who copied and streamed the sporting events.)

    at least it would be funny if some poor guy wasn't in jail for it.

     

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    •  
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      vivaelamor (profile), Mar 9th, 2011 @ 5:58pm

      Re:

      "he aided and abetted some people who didn't commit a crime (those who watched the stream), but didn't "aids, abets, counsels, commands, induces or procures its commission"
      the people who actually committed the crime. (those who copied and streamed the sporting events.)"


      I think you're making an important distinction here. The people who watched the stream could arguably be committing civil infringement, but it would seem only the ones streaming could arguably be committing criminal infringement.

      It seems to me a big stretch to say that they are aiding and abetting the streaming. That would seem like saying that someone helping another buy drugs is aiding and abetting the dealer, and thus prosecuting them for dealing.

       

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  •  
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    Jesse (profile), Mar 9th, 2011 @ 4:43pm

    I think we need to set up an analogy to help people understand the concept of embedding. I'll take a stab at it.

    Imagine that we take a book. Now open it to page 200. On this page, there is a picture. Cut out that picture. Now hold that "window" over another book, or a tv. You have successfully "embedded" content into that book. Now imagine that that second book was infringing content, and yet you blame the author of the book with the cutout "window" instead. Okay: now you understand how ridiculous these charges are.

     

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    •  
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      vivaelamor (profile), Mar 9th, 2011 @ 5:47pm

      Re:

      "Imagine that we take a book. Now open it to page 200. On this page, there is a picture. Cut out that picture. Now hold that "window" over another book, or a tv. You have successfully "embedded" content into that book. Now imagine that that second book was infringing content, and yet you blame the author of the book with the cutout "window" instead. Okay: now you understand how ridiculous these charges are."

      Lemme try and fix that a bit: Imagine that we take a book. Now open it to page 200. On this page, there is a space with instructions for where you can find a photocopy of a copyrighted picture.

      Still doesn't seem like a perfect analogy, but I don't think the whole cutout window bit works at all.

       

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  •  
    identicon
    Anonymous Coward, Mar 9th, 2011 @ 6:21pm

    HTML = Not Direct Infringement

    "Providing these HTML instructions is not equivalent to showing a copy. First, the HTML instructions are lines of text, not a photographic image. Second, HTML instructions do not themselves cause infringing images to appear on the user’s computer screen. The HTML merely gives the address of the image to the user’s browser. The browser then interacts with the computer that stores the infringing image. It is this interaction that causes an infringing image to appear on the user’s computer screen. Google may facilitate the user’s access to infringing images. However, such assistance raises only contributory liability issues, see Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 929-30 (2005), Napster, 239 F.3d at 1019, and does not constitute direct infringement of the copyright owner’s display rights."

    Excerpted from the 9th circuit court of appeals ruling on Perfect 10 v. Google

    This is like car manufacturers being tried for murder because someone ran over their boyfriend with a car they made. The car facilitated the murder and the manufacturer made money when they sold the car. But cases like that are dismissed because nobody can prove mens rea. Thus far, ICE and the DOJ haven't shown proof of mens rea either. ICE seems to have a twisted view on HTML thanks to their "training" which is paid for by the MAFIAAs. McCarthy shouldn't have even been arrested.

    Bring it shills

     

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    •  
      identicon
      Anonymous Coward, Mar 9th, 2011 @ 6:29pm

      Re: HTML = Not Direct Infringement

      I agree that merely linking or embedding does not make him a direct infringer. Regardless, his linking makes him an accomplice, and an accomplice is liable as if he were the criminal he's helping. Ergo, McCarthy is liable for the direct infringement of others as if he himself were the direct infringer.

       

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      •  
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        vivaelamor (profile), Mar 9th, 2011 @ 7:34pm

        Re: Re: HTML = Not Direct Infringement

        "Regardless, his linking makes him an accomplice"

        You maintain this after admitting earlier that you're unsure about the crime he's supposed to be aiding and abetting. Perhaps you mean 'his linking may make him an accomplice'.

         

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      •  
        identicon
        Anonymous Coward, Mar 9th, 2011 @ 9:29pm

        Re: Re: HTML = Not Direct Infringement

        I give a man a hammer saying "Here, you can use this to break into that store there". Surprisingly (or not) he does.
        I induced and aided/abetted by suggesting the crime and providing the tool to perform it.

        I stand in the street with a bucket of hammers and offer them to all who pass. How did I induce? How did I aid and abet the (2nd) man who robbed the (2nd) store? Did I make the hammers?

        Moral: Hyperlinks are like hammers. Always wear gloves.

         

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      •  
        identicon
        Anonymous Coward, Mar 9th, 2011 @ 11:34pm

        Re: Re: HTML = Not Direct Infringement

        If a daycare nanny turns on the TV one day and changes the channel to FOX and they're playing Toy Story 3 without permission, but without knowledge of that fact she shows it to the kids, is she an accomplice?

        nanny = mccarthy
        tv = browser
        fox = streaming site
        fox employee = uploader

        Meanwhile, the kids decided not to watch it but stayed in the same room. Is merely playing it infringement?

         

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      •  
        identicon
        Anonymous Coward, Mar 10th, 2011 @ 3:07am

        Re: Re: HTML = Not Direct Infringement

        I agree that merely linking or embedding does not make him a direct infringer.

        I see you're arguing for the contributory angle, which will be very, very interesting to see the result of.
        It is true that linking or embedding does not always equal direct infringement as covered by 506, however DOJ's case appears to be about just that, and I'd reckon they win based on what this fellow McCarthy was doing.

         

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        •  
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          DH's Love Child (profile), Mar 10th, 2011 @ 7:11am

          Re: Re: Re: HTML = Not Direct Infringement

          Except again, there is no such thing as contributory infringement in the criminal statute, only in the civil statute.

           

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      •  
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        The eejit (profile), Mar 10th, 2011 @ 3:51am

        Re: Re: HTML = Not Direct Infringement

        Now, here's an interesting hypothetical:

        What if MacCarthy was linking to a stream hosted by an employee of the company who holds the rights to the 'infringing' content?

         

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  •  
    identicon
    sumquy, Mar 10th, 2011 @ 8:12am

    maybe i'm just not understanding the arguments being made here. it would seem to me that before anything else, a factual determination needs to be made that there was a crime committed. somebody found an unauthorized copy of a sporting event, or found a way to stream that event in an unauthorized manner and released it to the web. was that a crime?, or was it a tort? debatable.

    assume, for the sake of argument, that it meets all of the criteria to be classed as a criminal offense. so next we have to look at if, and in what way, bryan mcarthey aided in that offense. this is where i am having trouble making the connection. i don't see how a prosecutor could hope to make a successful argument that he (bm) aided, or conspired, or abetted, or any of the psuedo legal terms being thrown around here, in that offense.
    sure, he helped people watch a sporting event that they had not paid for. but those people watching the event, have committed no crime, by just watching an event at a bar. even the bar owner or person watching the feed at home are, at most, guilty of a tort or civil offense.

    it seems to me, that the central question in all of this is an attempt by the federal government to classify another type of speech (linking) as illegal. we all know the go to justification here: no shouting fire in a crowded theater. but is this really comparable? the standard example is justified as an exception to free speech because it puts real people in jeopardy of life and limb. the only thing put at risk here is (maybe) the profits of a monopolistic hegemony. are we as a society ok with that? because i don't think that i am.

     

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    •  
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      vivaelamor (profile), Mar 10th, 2011 @ 9:31am

      Re:

      "i don't see how a prosecutor could hope to make a successful argument that he (bm) aided, or conspired, or abetted, or any of the psuedo legal terms being thrown around here, in that offense."

      I think you've hit the crux of the matter there. I'm not really sure about how aiding and abetting etc. is determined, but everything I've read so far suggests to me that they have to prove the alleged accessory was aware a crime was being committed. Considering those suggesting a crime was committed don't seem to be able to give a clear explanation of what the crime was, I find it hard to believe the prosecution have any chance of proving the alleged accomplice was aware of the crime. Even if he was aware of the infringement, that is no where near the same as being aware that it was criminal infringement.

       

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  •  
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    btr1701 (profile), Mar 10th, 2011 @ 9:52am

    > The affidavit relies on the extremely questionable
    > claim that merely linking to infringing content
    > can represent criminal infringement.

    Especially when you consider that the sites links point to can change. Someone can put a link on their site today which points to perfectly legal non-infringing content, with no ablility to control or monitor what the owner of that site will put up tomorrow.

     

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


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