Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again
from the do-they-not-understand-the-internet dept
Last month, we were the first to report on the fact that the Spanish company Puerto 80 had petitioned the US government to have it return its domains, which were seized, under questionable reasoning, by Homeland Security’s Immigration & Customs Enforcement (ICE) division. The government, who as detailed in that petition has been trying to avoid any kind of legal fight, first got the court to allow it to delay filing a response. But the time finally ran out, and the Justice Department, led by US Attorneys Preet Bharara and Chris Frey — who have been the DOJ pointmen on these seizures — have officially responded, claiming that the domains should not be given back or (gasp) infringement might occur again!
As we’ve come to expect with pretty much every move by the government related to seizing domains and censoring websites, this filing again suggests that the government is either taking questionable shortcuts in its descriptions of how things work, or (even worse) doesn’t seem to understand the fundamental technology at play. The response first complains about the method used to challenge the seizure (calling it “extreme”), leaving out the fact that the government left Puerto 80 with basically no other choice, given its earlier actions and failure to respond in a timely manner to requests from Puerto 80’s lawyers. From there, however, it just begins repeating some of the more questionable claims. For example, while it first admits that the files do not live on Rojadirecta at all, it still claims that the infringement occurs on the site. They do this in the same paragraph, separated by a single sentence:
Because the content ran on a live stream from another website, the selected show did not start at the beginning of the program; instead, the program ran from whatever particular point the show was presently at in the stream. Moreover, the event broadcast was shown in real time and was the same broadcast as the authorized broadcast of that same event. However, these broadcasts over Rojadirecta were not authorized by the relevant copyright holders.
But, that’s wrong. The broadcasts do not occur “over Rojadirecta.” The infringing content never touches Rojadirecta’s servers in any way, shape or form. The main focus of the discussion, as in the original petition, is whether or not Puerto 80 satisfies the key points to have seized property returned. Puerto 80 believes it does. The Justice Department does not. It will come as little surprise that I side with Puerto 80 here, and find the Justice Department’s statements on this point incredibly misleading.
The key point in the law as to when seized property should be returned is if there’s little likelihood that the property won’t be available for any future trial. That’s the main point behind seizure laws and it’s why we find this whole censorship campaign so ridiculous. It’s abusing a law, designed to be used to stop the destruction of evidence, against evidence that cannot be destroyed. The second key point is whether or not keeping the property creates “substantial hardship.” The government, of course, claims no such hardship. Stunningly, the government appears to not believe that stamping on one’s First Amendment rights represents “substantial hardship.” In fact, the Justice Department (who we thought were supposed to be interested in protecting the First Amendment rights of people) says that such prior restraint is not a substantial hardship at all. It also suggests that a First Amendment claim should be filed differently.
Even more bizarre is that the government seems to be claiming that, because it stalled so much in responding to Puerto 80’s lawyers, returning the domain at this point wouldn’t matter. Talk about circular logic:
Moreover , given the passage of more than five months from the Government’s seizure, a return of the Rojadirecta Domain Names is unlikely to matter to the overall traffic the website receives.
Not surprisingly, the DOJ cites the favorite talisman of supporters of these seizures: Arcara vs. Cloud Books, which allowed the shut down of a bookstore because prostitution was taking place there. The problem is that Arcara explicitly states that it does not apply to activity that involves expressive conduct. The DOJ doesn’t mention this, but clearly tries to get around it with the guffaw-inducing claim that copyrighted content is not expressive conduct (say what now?):
Indeed, it is clear from the record before this Court that the Government’s seizure of the Rojadirecta Domain Names was prompted by enforcement of the criminal copyright laws, and not as regulation of speech or other expressive conduct. As such, the seizure is not properly viewed as a prior restraint. See, ~, Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 n.2 (1986).
Next up, the government tries to claim that it shouldn’t give back the domain, because Puerto 80 will simply use it to infringe again, and then makes some more questionable statements concerning criminal copyright infringement. Take this for example:
Moreover, Puerto 80′ s attempts to liken itself to an Internet search engine is wholly unavailing. Unlike a search engine or other site that aggregates links to existing content neutral material on the Internet, Rojadirecta organizes links to very specific content in a precise and targeted way.
Wait, what? So any specialized search engine is not a search engine?!? Are these guys nuts? Google’s book search? Not search. Youtube search? Not search! After all, they organize links to very specific content in a precise and targeted way.
Furthermore, the government lays out it’s ridiculous claim that failing to stop infringement is itself infringement:
In linking to this content, Puerto 80’s failure to “stop an infringing copy from being distributed worldwide constitutes substantial participation” in distribution of copyrighted material. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991).
But that seems to go directly against the DMCA and general basic principles of applying liability to those who actually commit the acts of infringement, rather than third party service providers. The claim that failing to stop infringement constitutes substantial participation seems to go against substantial caselaw that argues exactly the opposite.
Next, quite incredibly, the government tries to make the case that the infringement is willful. This seems like an impossible mountain to climb, given that the Rojadirecta sites were twice found legal by Spanish courts. Clearly, being told by courts that what they’re doing is legal would suggest that the operators of the site believe what they’re doing is legal.
Finally, to prove “financial gain,” the government claims that they have evidence that Rojadirecta earned “thousands of dollars since 2005” from Google AdSense. Um, wait, seriously? In six years, they most they can dig up is “thousands of dollars”? Do they not realize how much it costs to run servers for a popular website? The idea that “thousands” (not even tens of thousands) of dollars earned over a six year period represents “profits” is laughable, and (once again) displays the government’s basic lack of knowledge about these issues.
Of course, courts do tend to grant the government plenty of leeway in these kinds of cases, so I wouldn’t be surprised to see the judge reject the basic petition, but allow these issues to be raised separately in the separate lawsuit that the government filed… four days after Puerto 80 filed the petition. Yes, pretty much as we’d heard from various domain holders who had tried to communicate with the feds about their censorship and domain seizures, they were warned that trying to get back the domain would lead to a lawsuit filed against them… and that’s exactly what happened here. This is a shameful abuse of power by the US government. It’s a blatant attempt to censor websites prior to any communication or fair trial, contrary to the very basic principles of the guarantees of free speech or due process. All because some entertainment industry folks can’t get their act together and understand technology. Preet Bharara and Chris Frey must wake up each morning proud of the fact that they’ve “protected” various sports leagues from having to give customers what they want, by basically trampling on the US Constitution they’re supposed to be upholding.
Filed Under: chris frey, copyright cops, domain seizures, justice deparatment, preet bharara
Companies: puerto 80, rojadirecta
Comments on “Feds Respond To Rojadirecta's Challenge To Domain Seizures: If We Give It Back, They'll Infringe Again”
Don't you know its against the law to say the government is wrong?
they were warned that trying to get back the domain would lead to a lawsuit filed against them…
Uhm… what was the lawsuit filed against them for? Standing up for their rights?
Don't you know its against the law to say the government is wrong?
This is pretty sickening. If the DA actually thought there was a real, justifiable case, they would have pressed charges. Instead they are using a lawsuit to tie things up and keep letting the clock run out as long as they can.
well this doesn’t even surprise me a little bit.
one thing I’d point out, mike, is that thargument that if they give the domain back the site will infringe again is flawed in two very basic ways.
1) no one has been proved to be infringing on anyone yet, thats what courts are for.
2) The site is still operating…
Don't you know its against the law to say the government is wrong?
Isn’t there a built-in period where the seizures have to be returned, under penalty of fraud or somesuch?
If not, I suspect it’s time to break out the Second Amendment again.
“This is a shameful abuse of power by the US government”
Name a law that has been passed at the federal level in the past 50 years that hasn’t been. The federal government was not constituted to do the majority of the things it does. I agree that needs arise through the course of time that requires a broader stroke than what the states can individually achieve. The civil rights act comes to mind here. But by and large, the fed, over time, just gathers more and more powers to itself regardless of what the constitution says.
Don't you know its against the law to say the government is wrong?
Seems in the Corporate America you are not allowed to stand up for your rights if there’s no money involved.
This is sick, I mean, they are worried about rogue sites, Govts and whatever but what is the US Govt becoming? A goddamn rogue State.
Can't wait...
to see how the ICE-seizure supporting AC’s defend this one. Let’s take some score here:
1) Even tho nothing infringing is kept on your site’s servers, you?re still infringing
2) This domain was seized to stop the destruction of evidence (that can’t be destroyed anyway), but we’re not giving them back even tho there’s nothing of value to be used in a trial (that hasn’t even been set yet).
3) Since it took us so long to respond, you shouldn’t need the domain back anyway, so… yeah… move along.
4) Arcara V. Cloud. Re…really? AAAARCAAAARAAAAAAA!
5) We think you’ll go back to doing something we haven’t actually charged you with nor proven you guilty of.
6) Even though you work exactly like Google’s more specific search features, you’re different because we say you are.
7) Even though the existing laws say otherwise, you weren’t stopping the infringement (you know… doing our job for us), so you were part of it. Because hey, if you’re not part of the solution, you’re part of the problem.
8) Never mind the fact that you were told by your sovereign governing body? twice? that you were obeying the laws that apply to you… you were breaking our laws… maybe… even tho we never tried you or found you guilty of doing so. So… yeah.
9) Since you’re operating somewhere other than good ol’ ‘Merica… it must be cheaper to do it there and that Thousands of Dollars you earned over the last 6 years MUST have been a profit…so you’re obviously innit for the bennies.
10) Finally, if you try to use the methods set in place by our laws to argue against what we’re doing, we’ll sue you. Which means, of course, that you’re responsible to obey our laws when we say you are, but you better not try to use those laws in your own favor!!
You know, if the US were a company that employed me, I do believe I would have quit on moral grounds and went to a competitor by now.
What I do not understand is why the actions by the US Government here are surprising.
Consider:
1. The US owns the internet. If you do nor believe that you need to ask the inventor All Gore who will verify that he invented it in a heat of passion generated by global warming.
2. US law is applicable world wide to app citizens of all countries. If you dough that then you can discuss that with Manuel Noriega if the US will allow you to visit him in his jail cell.
3. The US Government is not bound by US law outside the US territory having the belief that the US Government can beat the hell out of anyone, anytime, anyplace it so desires. If you dough that then you need to have a long discussions with the Laotian, Cambodians, Vietnamese,and Afghanistanise, Packistanise.
The response first complains about the method used to challenge the seizure (calling it “extreme”), leaving out the fact that the government left Puerto 80 with basically no other choice, given its earlier actions and failure to respond in a timely manner to requests from Puerto 80’s lawyers.
I disagree. The method can correctly be called “extreme” because it’s rare to give the alleged criminal back the thing you took away from him because there was probable cause to think it was used for crime. It only happens in the most extreme cases, and this case isn’t one of them. They’re not getting the domain name back, at least not until the actual forfeiture hearing.
That the domain name will probably be used for more criminal acts if given back will be the winning argument in this case. The fact that Rojadirecta set up new domain names and continued their alleged crimes shows that they have no intention of stopping.
I disagree that Rojadirecta was left with “no other choice.” As mentioned in this brief, once Rojadirecta filled out the claim form on March 22, the government had 90 days to file the forfeiture complaint. They government filed the forfeiture complaint on June 22.
And this brings up another point–all of the whining about this being unconstitutional because it violates the Fifth Amendment Due Process Clause is just bunk! Rojadirecta isn’t even claiming that.
What’s come out from these briefs is that everything was done correctly procedure-wise. The government got a warrant to seize the property, the government posted notice in a timely fashion for both domain names seized, Rojadirecta filled out the necessary paperwork three weeks after the property was seized, and the government filed its forfeiture complaint within the 90 days provided by law.
There was no due process violation. If you guys admit that, I might tell you why I think the government might lose in the forfeiture proceeding. 😉
Can't wait...
“2) This domain was seized to stop the destruction of evidence (that can’t be destroyed anyway), but we’re not giving them back even tho there’s nothing of value to be used in a trial (that hasn’t even been set yet).”
That’s fine since a review of what was seized will reveal nothing. They took the domain names via the registrar. That’s just changing a DNS record. Its not like they seized the servers and were going to use the data they contained to indict the owners.
infringe again? they never infringed in the first place
when was it ever legally confirmed they “infringed” to begin with?
Also there’s a very, very, very clear thing about this entire thing:
not once have they addressed or even acknowledged the prior restraint issue, as well.
Re:
“The government got a warrant to seize the property, the government posted notice in a timely fashion for both domain names seized”
Citation needed.
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shut up you, no one cares if they followed procedure, because the procedure is fucked, so wipe the smug “just-following-tsa-procedure’ asslicking grin off your face and think maybe for a second about how the entirety of this debacle is a giant shakedown by the entertainment industry on the whole of the world, directly backed by the US government.
/rant
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It’s all been mentioned in the documents filed in this case so far. You can access free copies of the documents in this case here: http://ia600604.us.archive.org/28/items/gov.uscourts.nysd.380557/gov.uscourts.nysd.380557.docket.html
It spends a lot of time saying why the petition has to be denied, noting:
“The Judiciary Committee’s fear in such instances was that, despite a weak government case, the property owner would “settle with the government and lose a certain amount of money in order to get the property back as quickly as possible.”
Earlier it says:
“Shortly after the execution of the Seizure Warrant, attorneys for the Government engaged in varied and numerous discussions with counsel for Puerto 80 in an attempt to reach agreement. Those discussions included, among other things, the Government’s offer to return the Rojadirecta Domain Names to Puerto 80 under an agreement in which the website would host chat forums and other non-infringing materials under the observation of a firm retained to monitor Puerto 80′ s compliance.”
Um. I look at that phrase “observation of a firm retained” and I wonder who exactly was going to pay for that. By my reading, it looks like Rojadirecta was given exactly the choice the Legislature wanted to prevent: either lose a certain amount of money to get the property back as quickly as possible, or face ongoing forfeiture.
spiral logic
So, failing to stop infringement is itself infringement?
Can we apply this more broadly, and to those whom it should be applied? We could use such classics as:
Failure to stop all crime is all crime! Thus, all ‘law enforcement’ agencies will be put into prison. To be shortly followed by anarchy…
Failure to stop drug use is drug use! Since the DEA is always fighting for stalemate and never victory, they are surely guilty here.
Failure to stop stupid laws… damn, guess that one’s not illegal from some stupid reason.
On a barely related note, has anybody noticed the majority of “leadership” in America is composed of airhead popularity contest winners, while the leadership of China is composed of scientists and engineers?
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“They’re not getting the domain name back, at least not until the actual forfeiture hearing.”
Thats rather one of the points of all this ICE domain seizing type stuff. Please answer the following question:
WHAT FORFEITURE HEARING??
This is the problem. THERE IS NO HEARING. Where is it? When is it? Its been, what, a year since the previous ICE seizures, and still no hearing. When is this mythical hearing to determine the validity of the seizures supposed to take place? 5 years? 10? 100? Dont you think that when seizing property, there should be an actual trail somewhere in there? You know, fucking due process and all that? Otherwise, I’m coming over to your house right now to seize it and I’ll just hang on to it for a couple of decades, since you would be OK with indefinite seizure time periods without any proof or judgment rendered against you.
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I get what you’re saying: The procedure itself is the problem. I was merely pointing out that the procedure that’s in place has been followed here, which is a different matter. You could argue that the procedure itself violates due process, but I don’t think that argument has much merit. Seizure and forfeiture of assets like this has been going on since the beginning of this nation. The procedures in place now are the product of two centuries of constitutional molding. Procedural due process means essentially two things: effective notice and a meaningful hearing. Rojadirecta is proof positive that the owners of seized domain names are getting both.
Don't you know its against the law to say the government is wrong?
It doesn’t matter what any law says, it’s clear the DOJ would just ignore them and make up anything that suits their puppet masters needs.
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The fact that Rojadirecta set up new domain names and continued their alleged crimes shows that they have no intention of stopping.
Maybe they have no intention of stopping because their actions are legal in their country.
When did US law become World law? This is unacceptable from an international trade and commerce standpoint, without even touching on the violation of the principle of self-determination which the USA used to champion so many decades ago.
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The government filed their forfeiture complaint on June 17. As I mentioned above, once Rojadirecta filled out the form for the return of the domain names on March 22 (three weeks after the seizures) the clock started ticking for the government to file the forfeiture complaint. The government filed the complaint within the allotted time, which was 90 days.
A copy of the complaint is here: http://www.scribd.com/doc/59833516/Complaint-for-forfeiture-Rojadirecta-com
This forfeiture complaint is a different case than the case this article is about. The main battle will likely be in that other case, which is titled: United States v. Rojadirecta.org and Rojadirecta.com. That’s the case to watch. If I find a free version of the docket, I’ll post the link.
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“Seizure and forfeiture of assets like this has been going on since the beginning of this nation.”
The fact that we feel there’s a problem is because seizures like this have NOT been going on. That’s the issue. Here we have a part of a website seized under the guise of “preserving evidence” when the thing seized is not “evidence” of anything. The evidence (if there was any) would be on the servers of the website. Not the address of the site.
Go read back through what Rojadirecta is ‘getting’… it’s certainly not a fair process. What they’re getting is more circular logic that ignores the very technology of the internet, threats of lawsuits if they continue perusing due process, and just straight-up failures of logic.
Don't you know its against the law to say the government is wrong?
Felony interference with overreaching government
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But can they just hang onto the domain forever? Don’t they, at some point, have to actually bring a case against the defendant? This has been going on for a long ass time, you would think they would, you know, actually file charges of some sort.
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Name a law that has been passed at the federal level in the past 50 years that hasn’t been.
try the last 100 years. read about woodrow wilson and franklin roosevelt and their approaches to executive power.
The federal government was not constituted to do the majority of the things it does.
you’re talking about “the american tradition” which our government doesn’t really do anymore. at least not since the invention of the independent agency in 1887 with the Interstate Commerce Commission. the american people still believe in the american tradition.
this is why government types and lawyers sound so strange when they talk.
But by and large, the fed, over time, just gathers more and more powers to itself regardless of what the constitution says.
it’s been that way for at least 80 years, and if you started today, it would take at least 80 to undo it.
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Even the court in their country acknowledged that what Rojadirecta does facilitates infringement. It says so in the documents that Rojadirecta has filed in this case. I’m kind of surprised they’re admitting this like that, actually.
Infringement is a crime in this country. Property that resided in this country, the two domain names, was used to facilitate that crime. That made the property subject to seizure and forfeiture, since property that exists in this country that’s used to break this country’s laws can be seized and forfeited. That shouldn’t come as a surprise to anyone.
Had Rojadirecta used domain names with registrars in other countries, they wouldn’t have this problem–and in fact they already do have such domain names–but they chose to place property here in this country, thus subject to this country’s laws, and that was their mistake. Well, that and breaking the law in the first place.
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They did bring a case against Rojadirecta for the permanent forfeiture of the domain names. It was filed June 17: http://www.scribd.com/doc/59833516/Complaint-for-forfeiture-Rojadirecta-com
Here's one:
The law against putting squirrels down one’s pants for the purposes of gambling…
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It’s quite common to seize property that is alleged to be used in a crime. You seize the property so that it can’t be used to commit anymore crimes. That’s what’s been done here. Preserving evidence is another, different reason to seize property.
Can't wait...
Hay, if they seized the domains under the guise of evidence, wouldn’t changing the DNS settings be considered destruction of evidence?
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You’ve got a point, they haven’t seized any evidence, what they’ve seized is an address. It would be like me naming my house, then during the accusation of some crime, instead of the authorities seizing that house, or anything in it, they seized the name I gave the house.
Or, lets say some other country accuses the Obama of something, instead of seizing anything of relevance in his home, they seize the name of his home, preventing him (or anyone else) from using the name “The White House”.
Don't you know its against the law to say the government is wrong?
“their puppet masters needs”
This is all over a supply of fresh buttons and bleach free detergent?
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They are suing the domain names themselves, not Puerto 80.
That complaint is a rehash of the seizure affidavit without the other sites that were seized in the same operation.
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Didn’t they seize, not the van, but the license plate on the van? Aren’t they still driving around in the van?
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“Even the court in their country acknowledged that what Rojadirecta does facilitates infringement.”
So does google. So does the internet.
“Infringement is a crime in this country.”
Right, but is facilitation? It’s not a simple yes-or-no. Certainly some types of facilitation have been found to be so, but not all. Sites like Rojadirecta do little more than google. Whether this is illegal in the US is in no way settled law, and yet ICE is seizing based on accusations of this, with a clearly weak technical understanding.
“and breaking the law in the first place”
You say that, and yet they haven’t been found guilty. Their activities are a grey area in terms of legality and the US (in theory) operates under the presumption of innocence, not to mention the speech limitations caused as “collateral damage”, and constitutional restrictions on unreasonable search-and-seizure.
So given all that, I must respond: say wha?
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Ok… I see the difference between the two seizures. But which one did the government claim? I thought (and could be wrong) that they are claiming they seized it to prevent the destruction of evidence. No, I’m not basing that understanding on Mike’s statements in the article… I thought I read that back in the history of the case.
And even if it is for the ‘stopping of further crime’, how does that play into prior-restraint?
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It would be more like taking the numbers off the side of your house and taking your info out of the phone book but leaving you your crack den and and everything in it.
But real world to internet analogies fail everytime….
See its like i have this car….
Can't wait...
1) The goal of the site is to aid infringement. Basic conspiracy theory.
2) was that the stated goal of the seizure? [citation needed]
3) clearly it wasn’t a pressing issue, was it?
4) etc.
5) See point 1. What isn’t illegal in one country is illegal in another. That’s why there aren’t very many torrent sites running (legally) in the US.
6) They are clearly different, it’s as simple as looking at the goal of the site. Google is aimed to help you find anything online. This site had the goal to help share pirated material. Without pirates material, the site wouldn’t have been popular.
7) Which existing laws would you like to touch? Perhaps the ones that Limewire lost on?
8) The website was made available and used regularly by US users. The judgements of a court in “country A” do not limit what can be done when the website offers services in the US.
9) If the website stayed up, the guy was making enough money to break even. That’s better than many online sites have done.
10) Adjust your tin foil hat, the voices are getting into your head again. Odd that they sound like Mike.
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Yes, but Google and the internet aren’t dedicated to infringement. There’s a difference.
Facilitation of a crime is a crime. It’s more commonly called aiding and abetting. 18 U.S.C. 2.
There was probable cause that the property was being used to commit crimes, and that’s all that’s needed to get a warrant to seize it. Says so right in the Fourth Amendment.
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its just as useless at stopping further crime as it is at preserving evidence but its the only thing the US could really do to them since their own government had ruled them legal.
They are like a bunch of spoiled babies who tried to take their football home since they didn’t like the score, but its not their football and they weren’t even playing in the game. But their brother is real big so they grabbed it and ran and are now using every piece of bullshit they can to delay having to justify something they really had no right to do.(see my below comment about analogies)
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However, they are a third party “infringer” at best (facilitating copyright infringement). This is not a criminal offense but a civil one. So why is the government hijacking their property?
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Right, the domain names are the defendant, but Puerto 80 can/will be a party to that suit by right. They can defend their property.
Historical definition Circa 2030
Definition : Domain Seizures – A mental illness characterized by the afflicted individuals cult like devotion to Intellectual property. Symptoms include, rationalization, paranoia, criminal behavior, poor impulse contorl, threatening behavior, intimidating behavior, drug and alcohol abuse, and chronic masterbation.
This was used unsucessfully as a defense in the Department of Justice corruption trials of 2013, after an intern of the new administration, leaked the entire DOJ and ICE mail system to Wikileaks. This was followed by a hack of the RIAA and the MPAA mail systems and accounting records by Anonymous.
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Helping someone else to commit criminal infringement is called aiding and abetting. An aider and abettor is treated as if they committed the crime themselves.
spiral logic
“On a barely related note, has anybody noticed the majority of “leadership” in America is composed of airhead popularity contest winners, while the leadership of China is composed of scientists and engineers?”
Unfortunately americans learn early that being popular and morally opaque pays A LOT more than being smart or kind.
on the plus side, at least we get to make websites comparing various Bush expressions to different species of monkeys
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So basically what you are saying is that every CEO from American companies that have any physical presence in another country now is fair game to the foreign governments right?
It doesn’t matter where the fact happened so as long as any company anywhere in the world doesn’t abide by some law anywhere any government can seize any property from American business right?
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This argument, if valid, create a huge problem for the concept of a World Wide web.
You see all registrars are accredited by ICANN. ICANN is a US entity and hence all the TLD it supervises are american property, are they not?
If using a US registrar is enough to allow an american law enforcement unit to seize a domain name then, using but a small logical step, all domain names are american property as they all ‘belong’ to ICANN.
If this logic becomes the norm, we will all live in closed National Wide web like the one Iran is currently trying to build, just so that we foreigners don’t have to be extradited to the US for doing something legal in our own country (yes, the case of Richard O’Dwyer is somewhat unrelated to this discution but the pattern forces reflexion).
Welcome back to the nineteenth century.
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isnt he still right though, is copyright infringement officially a criminal matter according to any laws?
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To have helped in a crime you have to have committed that crime in the freaking jurisdiction, if you didn’t there is no crime.
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that would be wonderful, maybe China can seize Wal-mart. The only thing in those stores that isnt made in China is the workers anyway
Can't wait...
1) [citation…no, proof needed]
2) you’re right… I’m probably wrong on that one
3) It was pressing to the Site who filed a timely request for their domain back. ICE was dragging their feet on it. And now they’re saying “well, since it’s been so long since you had it…”
4) i.e. e.g. q.p.q. p.h.e.p.h. I can post Latin abbreviations too.
5) what? No one said that it is legal here because it’s legal elsewhere. We’re saying they weren’t breaking the laws of the governing body that had jurisdiction over them.
6) Again, see point 1.
7) How about the ones that show that the site is not liable for what the people do on it?
8) Care to share what parts of both US and Spanish law regulate those lines? I’d be interested to know how much traffic there has to be for an entire site to fall under the jurisdiction of another country.
9) yeah, because that was the only source of income for the guy who owns the site and he was just raking in that money he was making through infringement… since, you know, that was his business plan all along. I’m just saying that the accusation of ‘for profit’ seems mighty weak when the ‘profit’ is less (by scale) than what I find in my couch.
10) ok… fair enough. Mike, do you have references for the threats of lawsuits?
Here's one:
…thankfully says nothing about chipmunks
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Don’t you mean “committed the civil offence themselves”?
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Better yet make it something illegal in any of the states and charge companies with criminal activity even if they don’t do business in that state and seize any assets those companies have and compel them to go to the state that they broke the law to be judge and jailed even if what they did, did not break any laws where they did it.
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unfortunately this seems to be the rather shortsighted goal of some of the decision makers in our government. They, like the content industry, seem to think that the rest of the world uses the internet because America’s content is so valuable and therefore would never just tell us to go fuck ourselves
Re:
“Yes, but Google and the internet aren’t dedicated to infringement.”
Neither is Rojadirecta. They have substantial discussions and links to non-infringing material. What constitutes “dedicated to infringement” is what is entirely unclear.
“Facilitation of a crime is a crime”
To what extent? Smith & Wesson? Ford and Jack Daniels? Victorinox? Verzion?
Re:
I disagree that Rojadirecta was left with “no other choice.” As mentioned in this brief, once Rojadirecta filled out the claim form on March 22, the government had 90 days to file the forfeiture complaint. They government filed the forfeiture complaint on June 22.
Oops. That last date should be June 17. The government’s forfeiture complaint was filed June 17.
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It is a crime and a tort. The government lists the elements of the crime in the brief embedded above.
Re:
This is about criminal infringement, not civil infringement. I think the government is arguing both that Rojadirecta engaged in criminal infringement and that they assisted others to engage in criminal infringement. If I’m reading the brief correctly, the government has two theories of criminal liability.
Re:
I think what matters here is that the property used to commit the crime existed in the US, so that made it seizable.
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Is the van the servers? If so, then yes, they still have the van. The servers weren’t in the US, so they couldn’t be seized too. I imagine they would have been seized if they were in the US.
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the domain names are the defendant,
6 words that sum up the entire absurdity of these seizures.
How the heck can a domain name be a defendant?
The domain names are nothing more than a pointer or address. They also are not sentient, or a legal person.
If I were to try to sue a phone number or street address, every judge and lawyer would look at me like I was crazy. Yet ICE/DHS/DOJ somehow can do the same thing.
Re:
And even if it is for the ‘stopping of further crime’, how does that play into prior-restraint?
As far as I know, the government’s argument has been that it’s seizable because it’s property used to commit criminal infringement. One justification for seizure of such property is so that it can’t be used to commit further crimes. I think the whole “seize for evidence” is just a red herring. That doesn’t matter since the government has a sufficient reason to hang onto the property with the “can’t be used for more crime” reasoning.
The prior restraint issue is a First Amendment challenge. I don’t think that issue will get resolved in this case, which is only about the temporary return of the property. That will happen in the actual forfeiture hearing which is now underway. That hearing is about the permanent forfeiture of the domain names, and that’s going to be the one to watch.
Re:
There is a difference between Google, which indexes everything, and Rojadirecta, which indexes the infringing stuff for the purpose of helping others infringe.
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Hey FUD,
I am not sure what you have done with your previously snarky attitude and bitchy responses, but keep it up.
Your posts here today (while i do not agree for the most part) is well stated, clear, and seem to point to furthering the discussion.
Well done, please continue.
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Property is the defendant when it is seized and forfeited like this. It does seem a little strange at first. Check out: http://en.wikipedia.org/wiki/In_rem and http://en.wikipedia.org/wiki/In_rem_jurisdiction
Re:
Thanks! I’m enjoying the talk. It’s a subject I think a lot about.
Don't you know its against the law to say the government is wrong?
A Goddamn Rouge State
FTFY
http://209.44.113.146/ that may help
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technically google indexes everything infringing or not
and Roj indexes streams infringing or not. It just happens that the % of streams that are infringing is higher than the % or everything that is infringing.
Re:
Still, that looks a lot like they were stalling, which is why it was filed when it was, the 90th day.
It looks like a deliberate attempt to game the law. Which judges have this irritating tendency to frown upon.
Re:
The level required for criminal infringement implies a massive commercial operation. If that was the case, where are the prosecution charges? Because, in your link above, there WAS no prosecution charges filed.
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yeah, unfortunately .pdfs have been failing to load for me on techdirt recently. Ill see if i can grab it off free westlaw this afternoon
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Wikipedia:
Within the U.S. federal court system, jurisdiction in rem typically refers to the power a federal court may exercise over large items of immoveable property, or real property, located within the court’s jurisdiction. The most frequent circumstance in which this occurs in the Anglo-American legal system is when a suit is brought in admiralty law against a vessel to satisfy debts arising from the operation or use of the vessel.
Doesn’t seem like it would apply here.
Wikipedia:
The use of this kind of jurisdiction in asset forfeiture cases is troublesome because it has been increasingly used in situations where the party in possession is known, which by historical common law standards would make him the presumptive owner, and yet the prosecution and court presumes he is not the owner and proceeds accordingly. This kind of process has been used to seize large sums of cash from persons who are presumed to have obtained the money unlawfully because of the large amount, often in situations where the person could prove he was in lawful possession of it, but was forced to spend more on legal fees to do so than the amount of money forfeited.[1]
Oh. It makes perfect sense now why they’re doing it that way. Of course, that still makes it wrong.
OK, I’ll throw this out there to get the ball rolling: I don’t think the government has shown that Rojadirecta directly committed infringement, so that leaves accomplice liability for aiding and abetting others to commit criminal infringement.
In general, to prove that someone is an accomplice the government must show: (1) the defendant committed the requisite acts, i.e., incited or abetted, (2) that he had the requisite mens rea, and (3) that the person incited or abetted actually committed the offense.
It is not necessary that the person aided and abetted, i.e., the principal, be identified or convicted. However, you still have to prove that a crime was actually committed.
Where’s the crime here?
I see allegations of how Rojadirecta attempted to help others to commit criminal infringement–that’s the actus reus for accomplice liability–but I see no evidence that others did in fact commit that infringement they supposedly helped bring about.
Am I just missing something here?
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Nope. They’ve seized numerous domain names that were previously pointed to servers hosted in the U.S. and to my knowledge they haven’t searched or seized any more than a couple. Maybe it’s because they don’t want to be held liable in the future for even more First and Fourth Amendment violations. With all the stalling, weak evidence and outright corruption involved this is the U.S. Government equivalent of a SLAPP case.
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It is a somewhat controversial thing in some circles.
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Try this: http://www.scribd.com/doc/59833528/Government-Memorandum-of-Law-in-Opposition-to-Petition-for-Release-of-Rojadirecta-com
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I think that’s the problem most of us have with this whole mess… the government seizes the domains and defend the action by saying “well, they were infringing/abetting”. But without proof of that, can that be the justification for the action?
Sure you could say that the government is only accusing and not acting on assumption of guilt, but when you read their defenses for holding on to the domains, it seems clear that they have judged these sites guilty and are trying to ‘keep it from happening again’. Never mind the fact that they haven’t actually stopped anything other than users getting to the destination by typing “.com” at the end of the address.
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I get that Rojadirecta is there trying to help people infringe, but don’t they need to have proof that they actually did help someone infringe? That’s what I don’t get. You’d think they’d have evidence of that. If not, that might get Rojadirecta off the hook here.
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I know I read somewhere, I believe it was in a letter from ICE to some congressperson, that they have seized some servers and they are seizing servers whenever possible. That’s about all I know about it.
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shut up you, no one cares if they followed procedure, because the procedure is fucked, so wipe the smug “just-following-tsa-procedure’ asslicking grin off your face and think maybe for a second about how the entirety of this debacle is a giant shakedown by the entertainment industry on the whole of the world, directly backed by the US government.
/rant
What a sniveling douchebag. Multiple idiots claim that proper procedure wasn’t followed, the allegation proven false and then we get the “well, the procedure is fucked” argument. Rojadirecta has been afforded the same due process as any other civil litigant. Rojadirecta and similar parasites make money on the backs of others. They fall under the authority of US law and now they get to deal with it.
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I’m not sure this will be a case of “getting off the hook”. It would be more like “getting the domain name back without further fight”. Remember, they aren’t doing anything illegal in their own country. They aren’t being tried as infringers (regardless of party) here in this country… all ICE did was grab the only US property in the whole thing here (because that’s all they could do).
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Whether this is illegal in the US is in no way settled law
How do you think unsettled laws become settled?
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“…unfortunately .pdfs have been failing to load for me on techdirt recently.”
Glad it isn’t only me. Was starting to get pissed at this old … thing.
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They, like the content industry, seem to think that the rest of the world uses the internet because America’s content is so valuable and therefore would never just tell us to go fuck ourselves
The overwhelming of infringing motion picture and TV content is American. Almost all of the rest is shit.
Don't you know its against the law to say the government is wrong?
This is a Spanish site we’re talking about here.
A Goddamn Estado Rojo.
FTFY
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Wouldn’t they have to help someone make money based on the infringement? For it to be criminal?
Which of the downloaders scored big cash by infringing that the website aided in doing so?
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So, in a nutshell, all rohadirecta has to do is deny culpability for inducement. Since the gov’t has no direct proof the case will fail. In the event that they do deny, the DOJ will subpoena server logs, etc. but have no jurisdiction to enforce such, so then the case also fails for the government since you cannot convict without evidence. Of course then the government will call for expert testimony and will get the RIAA/MPAA to supply chat logs, screen shots, etc.
Here is the thing, if they are trying to get them for criminal infringement then they need to have a proper investigation by authorities that gather evidence. Having the MAFIAA gather such evidence is not supportable since its source taints its validity.
I don’t see the government winning this one.
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[citation needed]
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Have forfeiture complaints been filed for all other seized domains as well? It seems like they only filed the forfeiture complaint because Rojadirecta opposed the seizure. What about other domains the seizure of which have not been opposed by the former owners? If the government hasn’t filed a forfeiture complaint on every single one, then it shows that they were not following procedure. They were bullying people and only filed against those who stood up against them.
Copyhype has coverage today: http://www.copyhype.com/2011/07/rojadirecta-seeks-return-of-seized-domain-names/
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i believe you are right, if they are charging them with aiding and abetting criminal infringement somebody has to be making money off of watching these streams.
I really think that the government hoped no one would challenge them and if they did they would be able to stall long enough to get some law passed to would allow them to win the case. I think they know they are grasping at straws and hoped they wouldn’t have to prove their right to do this. Most of these sites dont make any or much money, certainly not enough to make it financially sound to try pay for lawyers while the government keeps dragging their feet or for the years, I am sure, they will try to make this process go on for.
Sure I won’t argue that people watch infringing content on Roj but I real feel like the industry said “here take these sites down” the gov said “really we don’t have any grounds or means to do so” and the industry response was “your fucking ICE/DHS just do it. Who will stop you? and take these bags of money please my arm is getting tired.”
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I had another date wrong too. The seizures happened on February 1. So it was not until about 7 weeks later that Rojadirecta filed their Seized Asset Claim Form that got the clock running on the feds to file the forfeiture complaint. I had said 3 weeks, but should have said 7. My bad.
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Where are the extradition proceedings for Rojadirecta’s administrators if this is a criminal case? Isn’t property usually seized around the same time the cops actually arrest suspects?
It still seems like their originally intention was just to seize the domains that their corporate overlords had called them about on their red telephones and they didn’t expect anyone to oppose the action. They never intended to actually press charges. They just planned on taking other people’s balls and going home.
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“If I find a free version of the docket, I’ll post the link.”
You pirate!
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they probably kidnapped a waitress
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woot the pdfs load there
Mike, fix your shit
Don't you know its against the law to say the government is wrong?
Isn’t there a built-in period where the seizures have to be returned, under penalty of fraud or somesuch?
Umm, where have you been? The feds and police seize property all the time, which the owners never get back. Years ago, the government decided that getting convictions in drug cases was too hard, so they made it legal for law enforcement to just take property that they suspected was used in, or gained via illegal drug deals. In many cases, the owner is never charged with a crime, their property is. Of course, the feds/cops started “suspecting” a hell of lot of property, such as cash, cars, and even homes.
Since this has turned out to be a pretty profitable scheme, there has been a push to expand asset seizures to all types of crimes. Many police departments look at asset seizure as a normal part of their yearly budget.
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You know what?
After reading that, I’m not sure if it’s just me, or if there’s something in the water, but both yourself and Copyhype seem to have become more reasonable in the past couple of weeks.
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Here you go, from the statute, 18 USC 983(f), para. 8. The seized property is not released if it:
If it’s likely to be used to commit additional criminal acts, it won’t be returned. I’d say the government has a very compelling argument that it’s likely, so game over. It doesn’t matter if it’s being used as evidence or not.
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Ha! It’s all public domain.
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It’s quite common to seize property that is alleged to be used in a crime. You seize the property so that it can’t be used to commit anymore crimes.
Or if you think seizing the property will be easier than filing actual charges. Or you think seizing the property will be profitable for your organization…
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I don’t know anything about extradition. Would Spain extradite if asked? I dunno.
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We’ve been reasonable all along. 🙂
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As far as I know, the government’s argument has been that it’s seizable because it’s property used to commit criminal infringement. One justification for seizure of such property is so that it can’t be used to commit further crimes.
Has any court even decided that just linking to other sites where unauthorized streams can be found, is a crime under US law? I know it’s likely to found as such, given the current climate that the corporations are always right, but has it been ruled as such in any existing case?
Unless it has, the government is acting on potential crimes.
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Wouldn’t they have to help someone make money based on the infringement? For it to be criminal?
It can be criminal without making money:
http://www.copyright.gov/title17/92chap5.html#506
But still I think the problem is that they haven’t shown that a crime was actually committed by someone other than Rojadirecta, regardless of whether that criminal made money or not.
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Has any court even decided that just linking to other sites where unauthorized streams can be found, is a crime under US law? I know it’s likely to found as such, given the current climate that the corporations are always right, but has it been ruled as such in any existing case?
Rojadirecta is putting the links there to assist others in infringing, and that makes them an accomplice. It’s not like Google which links to everything. Rojadirecta intentionally links to the infringing stuff. They organize it and make it easier for others to infringe. Aiding and abetting criminal infringement has been a crime since about 1897, I believe. Aiding and abetting any crime is itself a crime, generally speaking. It’s an old concept.
Government
Mike, can you do me a favor and not clump the ENTIRE U.S. FEDERAL GOVERNMENT, consisting of hundreds of thousands, if not millions of people, into one, technologically-ignorant group?
Statements like “displays the government’s basic lack of knowledge about these issues” pisses me off because, believe it or not, there are many people in the government whose knowledge of these issues far outshines yours. How about narrowing your stereotyping to just the DoJ and DHS/ICE, or better yet, the DoJ’s attorneys in this particular case?
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I think the larger issue is: Is linking distributing? Wouldn’t the streamer be the distributor?
Which raises the other issue: why not go after the actual distributor. If you could take down the sites that hose the stuff its collapses the whole house of cards, why keep taking off the top layer and letting people rebuild?
Damnit, I am gonna devils advocate. If they are passing traffic to the sites that are distributing and any ads are on the page they direct you to they would be helping the original distributor make more money. I have seen a lot of streams that have an ad in the corner, or have the pop-up add when you hit the play button. If that is the distributors ad and Roj just pointed you to it, then there is your criminal contributing. Never used Roj though so not sure if its applicable.
Linking the public to the distribution source really should only be aiding and abetting civil copyright infringement though.
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Someone can run a web site showing instructions on how to grow drugs or build bombs all day long and if a visitor decides to follow them the site won’t be forfeited or the owners indicted. The same applies in this case because Rojadirecta had no controlling interest over the broadcasts, or so they say, and the Government has failed to prove otherwise. Although I haven’t read the previous Spanish cases against them, on the surface it seems like they wouldn’t have won those if they were doing more than just linking.
Can't wait...
1) You just need to look a the site, the legal action taken against it before, etc. The objective of the site was clear.
2) Good enough for me.
3) In internet terms, a week is a long time.
4) Your reference was sort of meaningless, I gave you a meaningless answer.
5) The question of jurisdiction is key here. If they offered services in the US, they are subject to the laws. Example in the past nude mags from Amsterdam legally showed 16 & 17 year old girls in sexual poses. Importing that content into the US would get you arrested. Selling it over the internet would also get you in trouble, in the US as well as home country. Ask the poker sites how that works, even if they are all based outside of the US.
6) Again, see point 1.
7) The site owners were clearly aware (they had been to court over the issue before). They can easily block the US out, if they wanted to. They did not.
8) A single transaction might be enough. Selling or marketing a product might be enough. That is for the lawyers to figure out.
9) You only have to look at all the money that disappeared from TPB. I know people paying 50k a month for ad space “back in the day”, yet the site owners claim they made nothing? Yeah… okay.
10) waiting for mike.
Government
if you are so far above the grade of peon that when people talk about the government in general you feel they are talking about you, maybe you should spread that knowledge instead of wasting your time feeling insulted by broad generalizations.
If I say Wal-mart is devil spawn how many cashiers and stock boys do you think I offend? If you arnt the problem why take it to heart? If you feel guilty, why is that?
Can't wait...
> The website was made available and used
> regularly by US users. The judgements of
> a court in “country A” do not limit what
> can be done when the website offers services
> in the US.
Why not just cut out the weasel words and say what you really mean? The laws of the US apply to everyone in the world, whether they like it or not, but this is one of those hyporcritical rules that doesn’t apply in reverse.
In other words, you have to obey us, but we don’t have to obey you.
Can't wait...
> If they offered services in the US, they are
> subject to the laws.
You keep saying it, but it’s time for you to produce an actual legal citation to back it up. Case law, statute, code, or ordinance, please, which purports to confer US jurisdiction on anyone in the world who puts a web site on the internet.
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> That the domain name will probably be used for
> more criminal acts if given back will be the
> winning argument in this case
The government hasn’t even made a prima facie showing that it was used for criminal acts in the past. All they’ve alleged is the linking issue, which is inducement, which is (at best) *civil* infringement.
The government is literally making up an entirely new criminal law here, then seizing someone’s property based on their alleged violation of the made up law.
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“Aiding and abetting criminal infringement”
but watching a stream isn’t a crime so helping people watch streams would only be A&B civil infringement wouldn’t it?
they would have to prove they were A&B the host which would be an interesting argument
also
“technically google indexes everything infringing or not
and Roj indexes streams infringing or not. It just happens that the % of streams that are infringing is higher than the % or everything that is infringing.”
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> Is the van the servers? If so, then yes,
> they still have the van. The servers weren’t
> in the US, so they couldn’t be seized too.
> I imagine they would have been seized if
> they were in the US.
Which illustrates perfectly why these seizures have no meanigful basis behind them other than to harass and annoy.
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> If it’s likely to be used to commit additional
> criminal acts, it won’t be returned. I’d say
> the government has a very compelling argument
> that it’s likely, so game over.
Not unless they can convince the court that their new made-up “linking = inducement = criminal violation” law is valid.
Unless they can do that, they can’t even show that Rojadirecta’s behavior was criminal in the *past*, which would make showing the likelihood of them committing future criminal acts very slim.
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The government hasn’t even made a prima facie showing that it was used for criminal acts in the past. All they’ve alleged is the linking issue, which is inducement, which is (at best) *civil* infringement.
The government is literally making up an entirely new criminal law here, then seizing someone’s property based on their alleged violation of the made up law.
I think they’ll lose this petition to get the domain name back pending the forfeiture proceeding because the government’s argument that the property will be used again to commit crimes will win the day.
I do think though that a motion to dismiss by Rojadirecta in the forfeiture proceeding has a chance of winning for the reasons you state. Where’s the underlying crime? Without that, it’s not aiding and abetting. The government is saying that it’s property used to commit crimes, but they haven’t shown any crime yet. They can show that Rojadirecta tried to help others commit crimes, but they haven’t shown that any other crimes were actually committed. I really don’t get it.
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I’m about there with you. I don’t think it’s that hard to show that what Rojadirecta does is criminal, but they need to have proof that some crimes were committed by others. And I don’t think they’ve done that. I don’t think the problem is with the legal theory. I think the problem is that the proof is insufficient.
Government
You’ve never been stereotyped before, have you? You don’t even seen to understand what the word means.
And I have no idea what you’re trying to say about spreading knowledge. Are you saying that if I’m a highly knowledgable government employee, I should teach the entirety of the Federal Government? That’s the WHOLE POINT. The Government is so huge that stereotyping it and its employees (which is what Mike did) is either done with ignorance or with willful malice
Possible first amendment challenge
What would happen if you printed a book with URLs of sites that streamed video? Would such a book be protected by the 1st amendment? It seems to me that there is plenty of case law that would claim it would be.
This would make an interesting test case — if it succeeds, it becomes a clarifying precedent, as the DOJ would need to prove that a web site is somehow different from a book.
In Lemley’s brief, he says, “the government has not shown and cannot show that the site ever was used to commit a criminal act, much less that it will be in the future.”
http://ia600604.us.archive.org/28/items/gov.uscourts.nysd.380557/gov.uscourts.nysd.380557.5.0.pdf
As this point I’m inclined to believe him. I predict that the government wins on the issue of the temporary return of the domain names, but that Rojadirecta wins on a motion to dismiss in the forfeiture proceeding. That prediction is subject, of course, to change as new information becomes known.
Still, I think the government’s legal theories have all been sound, and there’s been no constitutional problems with all of this. I do hope the First Amendment arguments get fully hashed out before the case is over. I’ll be upset if they aren’t.
Government
He didn’t say all government employees are tech. inept. He Didn’t say that if you are gov employee you are tech inept, or that “whatever your name is” is tech inept because he works for the government. He is however talking about the actions of many government bodies(the government) and how tech inept they make them seem. Beyond the subject of the article there are many other recent examples available of the government making public statements or attempting to pass laws that are very inept.
This article is discussing the joint actions of many government agencies. Involved would be ICE, DHS, Department of Justice, and others. The government is a fitting descriptor to lump all of those groups. Rather than having to list every group involved each time he uses the word government, he uses one word for brevity.
In the context of the article no one would assume that he is trying to insult every government employee, except apparently thin-skinned people with rage issues who try to make everything about them. It quite obvious he is talking about the governments public actions in this case this legal filing and in a broader sense, press statements, other legal actions and laws both proposed and passed that make anyone with the least bit of technical knowledge feel like they are listening to someone who has absolutely know idea what they are talking about.
My earlier point was if you don’t make public statements, policies, or other tech inept things coming from the government and reaching the ears of the public, you should find no reason to take offense. If you do have a say in these polices, practices, or statements maybe you should make better ones.
When parts of a organization act like boobs it makes the whole organization look like boobs. I am sorry the public facing members of your organization look like a bunch of boobs but they do and that will lead to statements that the organization they run is a bunch of boobs.
You should know that the statement wasn’t aimed at you, by your inability to control the actions of all these boobs, and since its clearly not about you you should move on with your life or yell at the people who are making your organization look like a bunch of boobs instead of the people who are noticing it.
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I’m about there with you. I don’t think it’s that hard to show that what Rojadirecta does is criminal, but they need to have proof that some crimes were committed by others.
Check out US v. One Sharp Photocopier, 771 F.Supp. 980:
Although a criminal conviction would generally suffice to demonstrate probable cause, see United States v. All Right, Title & Interest in Real Property & Building Known as 303 West 116th Street, New York, New York, 901 F.2d 288, 292 (2d Cir.1990), such a conviction is not a prerequisite to a civil forfeiture proceeding. Id.; see United States v. Dunn, 802 F.2d 646, 647 (2d Cir.1986), cert. denied, 480 U.S. 931, 107 S.Ct. 1568, 94 L.Ed.2d 760 (1987); United States v. $152,160.00 United States Currency, 680 F.Supp. 354, 356 (D.Colo. 1988).
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I’m not saying there has to be a conviction in the underlying crime. I’m only saying that the government has to prove that the underlying crime was committed as one of the elements of an aiding and abetting charge. Here, I see no evidence that a crime was committed by anyone else, so I think the aiding and abetting charge will fail.
Re:
The government’s theory is that the property is used to commit crimes, but where’s the evidence of that? What crime was actually committed?
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“civil”
they are not accusing them of a civil violation, that suit would be brought by the copyright holder
they are accusing them of a criminal violation, which is why the gov brings the suit
Re:
They have to show probable cause that a crime was committed. Wasn’t that included in the affidavits submitted for the seizure?
Re:
That is incorrect. The governing can bring civil forfeiture proceedings. Hence the reason why the case I cited was also brought by the government (did you even read it?). Mike explains the process here.
Re:
But what evidence is there that any crimes were committed? They have lots of evidence that Rojadirecta attempted to facilitate infringement, but do they have any evidence that infringement actually occurred?
Re:
In the Photocopier case, there was evidence that the copier had been used to commit infringement. Where is there such evidence here?
Re:
Sorry I was unclear.
I was under the impression that in a civil case the plaintiff has to be wronged, either through the defends neglect to carry out a legal duty or by the defendant violating their rights.
I am aware the government can bring a civil suit but I had assumed they still had to be the ones that were wronged. I was not aware the government could bring a civil suit on behalf of someone else.
Seeing as how none of the governments property was infringed upon, the defendant did them no harm nor failed to prevent harm it was legally obligated to prevent, I figured they had to bring a criminal suit. But I am wrong? the government can sue on behalf of the rightful plaintiff in a civil suit?
/sarc: or do they just think they are Righthaven?
Re:
Yes. They presented evidence in both the affidavits they submitted for the seizure and in their most recent response (see p. 18). They need only show probable cause that a crime has been committed, i.e., criminal copyright infringement.
Re:
Yes. They presented evidence in both the affidavits they submitted for the seizure and in their most recent response (see p. 18). They need only show probable cause that a crime has been committed, i.e., criminal copyright infringement.
They presented evidence that they went on Rojadirecta and clicked on a link and saw infringing material. So when I said there’s no proof that Rojadirecta aided in infringement, I obviously spoke too broadly.
But still, where is the proof that that infringement was criminal, i.e., was (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?
Wouldn’t they have to show that? How do we know that the underlying infringement was criminal and not merely civil?
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I don’t think that level of detail is necessary for a forfeiture proceeding. If, for instance, the government seized a gun in connection with an alleged murder, they wouldn’t have to prove each of the elements of murder in order to maintain possession of the weapon in a forfeiture hearing. From what I can tell in reading case law on point, the government need only demonstrate “a reasonable basis” for believing that the property is subject to forfeiture.
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Looking at the statute:
18 USC 983(c). http://www.law.cornell.edu/uscode/18/usc_sec_18_00000983—-000-.html
My read is that they have to show by a preponderance that the domain names were used to commit criminal copyright infringement. I believe they can show they’re used to commit infringement, as demonstrated by the agents using the site, but I’m not sure they’ve shown criminal infringement.
In your murder example, they’d have to show by a preponderance of the evidence that a murder had been committed. And that’s what I don’t think they’ve done here. Where’s the murder? Where’s the criminal infringement?
I haven’t read a lot of caselaw about this, so I appreciate the input.
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It’s worth noting too that if the government’s evidence is insufficient now, they can always gather more evidence later in discovery to get the evidence they need. Perhaps they intend to get the server logs to do just this. Maybe with that in mind it doesn’t look so good for Rojadirecta. I don’t really know. I’m just enjoying the show.
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I do realize now though that I’m focusing on the burden of showing that Rojadirecta is an aider and abettor, and I should be focusing only on whether the government can show that the property was used to facilitate criminal infringement by a preponderance of the evidence. That seems to be the real issue. Whether Rojadirecta itself faces criminal liability is a different issue than whether the property they own is used to facilitate crime and therefore subject to forfeiture. I’ve been melding the two somewhat erroneously.
Sorry for all the thinking out loud… I’m just trying to grasp this whole deal.
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That doesn’t matter it at all, unless people are willing to accept a new vision of states and sovereignty.
Can any court inside the USA go after someone who committed an act in one state and be punished in another for doing that?
Of course not, so where did anybody showed that Rojadirect committed any crime at all?
The court doesn’t have jurisdiction over Spain why it is trying to pass judgment?
This is a serious precedent. Can you imagine a lawyer being accused of a crime in another state where he never set foot in it because of legal acts he done in his own state?
Why is that so hard to understand?
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I would think said server logs have long since been removed. How long do most companies save server logs? Somehow doubt it’s longer than 6 months.
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They wouldn’t do that. Their economy would take too huge a hit.
Government
Take a deep breath. Relax. Repeat after me: “I am not the government. Just because I work IN the government does not make ME the government.”
Feel better?
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“linking = inducement = criminal violation”
LOL. Like it’s anything but that.
You jokers are a real hoot.
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It just happens that the % of streams that are infringing is higher than the % or everything that is infringing.
hahahahahahahahahahahahaha
So if there is no difference between the two, then why not just use Google to get directly to what you’re looking for?
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There is a difference between Google, which indexes everything, and Rojadirecta, which indexes the infringing stuff for the purpose of helping others infringe.
Why are you bothering to post logic and facts on this freetard blog? Stuff like that just makes these douchebags put their fingers in their ears and whine “no, no, no!!!”
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At least one of the cases ICE is prosecuting will provide caselaw for future examples of criminal inducement.
The internet is a relatively new thing when it comes to copyright caselaw, so new precedents are being set all the time. That’s the nature of law and it always has been.
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> At least one of the cases ICE is prosecuting
> will provide caselaw for future examples of
> criminal inducement
There can’t *be* criminal inducement unless Congress adds it to law. Neither the DoJ nor the judiciary has the power to just make up a whole new crime and add it to the penal code.
infringe again? they never infringed in the first place
Rojadirecta is a foreign site, so prior restraint is a non-starter; our First Amendment law neither affects their activity or protects their activity.
Masnick’s delusional rants about prior restraint are just fear-mongering meat for the freetard masses.
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Am I just missing something here?
uh yeah, you are.
http://www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html
infringe again? they never infringed in the first place
this is sarcastic, right?
infringe again? they never infringed in the first place
The government seized the domain name at issue with the representation that the domain name name was in the United States.
You seize expression in the United States, and then claim ?no, no, no, we was only seizing foreign stuff? … well, it demonstrates the government’s bad faith.
Cubby v. CompuServe
But that seems to go directly against the DMCA
There’s a good reason for this. Cubby v. CompuServe was a 1991 case, and as such, occurred before safe harbors. In other words, this case law has been superseded by black-letter law.
Furthermore:
1. It was a libel case, not a copyright case, so the safe harbors in question are not 17 USC 512(c) but 47 USC 230.
2. The case was decided in favor of the defendants, i.e. CompuServe was not found guilty of libel.
There are lots and lots of other, very basic, legal mistakes made by ICE here (e.g. Arcara). I don’t have time to go through them right now, but this should be a fun read. And by “fun,” I mean “sickening.”
Cubby v. CompuServe
Dammit… Didn’t close a link tag in the post above.
If you’re curious, here are the relevant cases and laws:
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512—-000-.html
http://www.law.cornell.edu/uscode/47/230.html
http://en.wikipedia.org/wiki/Cubby,_Inc._v._CompuServe_Inc.
http://epic.org/free_speech/cubby_v_compuserve.html
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I’m not sure if it’s just me, or if there’s something in the water, but both yourself and Copyhype seem to have become more reasonable in the past couple of weeks.
Terry Hart (Copyhype) hasn’t. Look how Hart frames the discussion:
That was not, of course, the government’s condition:
– from the Rojadirecta complaint
Furthermore, Hart still clings to the outlandish position that Arcara allows the ex parte seizure of expressive material.
Also – it’s been stated here that Hart is a lawyer. In fact, he’s not – yet. According to his Linked.in profile, he just got his Juris Doctor from Chicago-Kent in May 2010, and is still awaiting his admission to the Illinois bar.
So, while his opinion is certainly informed, none of it has been tested in a court of law. Not that I’m any different, of course; in fact, I’m not even a law student.
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Furthermore, Hart still clings to the outlandish position that Arcara allows the ex parte seizure of expressive material.
The fact that the United States Department of Justice is making the Arcara argument should tell you that perhaps it’s not as outlandish as it may seem to you. The fact is, Terry made the Arcara argument months ago, and now the DOJ is making the same argument. If you were less biased, and perhaps if you understood the argument better, you might even say that Terry’s been making the correct argument all along.
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Any chance you’ll admit that there’s been no Fifth Amendment Due Process problems with the seizures now? You were so adamant that there were, if I recall correctly. Not even Rojadirecta is arguing it. That should tell you something too.
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Actually only obvious troll bullshit like yours.
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You can easily turn this around. Since there’s nothing substantial to justify these seizures, the government is grasping at straws so desperately it uses even the most outlandish arguments thought up by some not-lawyer.
Government
The Government is so huge that stereotyping it and its employees (which is what Mike did) is either done with ignorance or with willful malice
So your positive stereotyping
there are many people in the government whose knowledge of these issues far outshines yours
which btw contradicts all we’ve seen so far is ok then?
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It’s not grasping at straws. The Arcara argument is the right argument for the government to be making because it’s simply the right argument. It’s not prior restraint because (as the Court found in Arcara) the conduct “that drew the legal remedy in the first place” was not “conduct with a significant expressive element.”
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=478&invol=697
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The fact that the United States Department of Justice is making the Arcara argument should tell you that perhaps it’s not as outlandish as it may seem to you.
No, it just means that the DOJ is making outlandish claims. Nothing particularly new there.
If you were less biased, and perhaps if you understood the argument better, you might even say that Terry’s been making the correct argument all along.
I understand the argument just fine, thanks. What I don’t understand is why the DOJ (and ICE in particular) need to resort to outlandish claims and a total misreading of case law to actually make their point. I guess it’s because they don’t have any actually relevant case law to back them up. But then, why are they even doing this in the first place?
I’m guessing the answer has to do with money being given to Congress, but that’s just a guess.
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Any chance you’ll admit that there’s been no Fifth Amendment Due Process problems with the seizures now?
Probably not. But you’ll have to remind me of the Fifth Argument claims, because I’ve mostly argued from a First Amendment standpoint, and from copyright case law.
I’m assuming the Fifth Amendment charges have to do with proper notice and the opportunity of an adversarial hearing. So, tell me: when, exactly, was Rojadircecta directly notified of the proper jurisdiction and venue to contest the seizure?
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It’s not prior restraint because (as the Court found in Arcara) the conduct “that drew the legal remedy in the first place” was not “conduct with a significant expressive element.”
Are you serious? Let’s look at the actual ruling:
United States v. O’Brien, supra, has no relevance to a statute directed at imposing sanctions on nonexpressive activity.
So, material covered by copyright is “nonexpressive activity?” That is totally laughable. Besides, didn’t you argue that even mostly factually material was “expressive activity” in one of the Righthaven threads?
Either a mostly-factual editorial is “expressive activity,” thus can be covered by copyright, in which case Arcara doesn’t apply; or it is “nonexpressive activity,” in which case it cannot be covered by copyright, making the expression completely legal, and Arcara does not apply.
Either way, you’re wrong.
The closure statute is directed at unlawful conduct having nothing to do with books or other expressive activity.
Are you suggesting that books cannot possibly be infringing? You need to be arguing that; otherwise the judges specifically said Arcara doesn’t apply.
The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials
Copyright law does not impose any restraint on the dissemination of particular materials? If it does, Arcara does not apply.
Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited
So, these ex parte seizures are not “an advance determintation that distribution of particular materials is prohibited?” If it is, then Arcara does not apply.
Look, I know you’ve studied law. You really should know better. Arcara is a complete non-starter.
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I understand the argument just fine, thanks. What I don’t understand is why the DOJ (and ICE in particular) need to resort to outlandish claims and a total misreading of case law to actually make their point. I guess it’s because they don’t have any actually relevant case law to back them up. But then, why are they even doing this in the first place?
Could you remind me again why you don’t think Arcara applies? I can’t remember what your argument is. Is it the same as what Mike says in the article above?
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Right, 5A procedural due process means effective notice and a meaningful hearing. The government posted notice of the seizure the same way they post notice in other forfeiture cases. Where does it say that in order to satisfy due process, Rojadirecta had to be “directly notified”? I don’t believe that’s the standard.
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Where does it say that in order to satisfy due process, Rojadirecta had to be “directly notified”?
Apparently the government is handling this under 18 USC 46 Sec. 983:
Assuming that ICE did in fact file a civil judicial forfeiture action against the property, the rules would be covered by the Supplemental Rules for Certain Admiralty and Maritime Claims. Specifically, that would be Rule G, in which case Rule G(4)(b) applies:
So, yes, direct notice is required.
Now, the time frame for these things is fairly long. The government has 60 days to file a civil judicial forfeiture action; then “a reasonable time after filing the complaint” after the forfeiture action, to provide notice by publication on their website; then 60 days after the notice by publication.
Still, to my knowledge, none of the sites were ever contacted in this manner; they were never told “the name of the government attorney to be served with the claim and answer,” or the deadline, or even the venue. That certainly didn’t happen in this case; Rojadirecta had to hunt them down over several weeks, “but was unable to engage with the government until it notified the U.S. Attorney?s Office of its intent to seek a temporary restraining order and file a petition for immediate return of the seized domain names” – many weeks after it had sent ICE a letter requesting the domain names be returned under 983(f).
I would also like to point out that ICE did not file a civil forfeiture action, until after Rojadirecta filed Seized Asset Claim Forms on March 22nd. In fact, I believe that they have not actually filed civil forfeiture actions in most of these cases. That would mean that direct notice would be required within 60 days, and that hasn’t happened.
Obviously I can’t be sure – because the site owners aren’t sure either, as ICE never notified them, and they have no idea what has been filed and what hasn’t.
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Apparently the government is handling this under 18 USC 46 Sec. 983:
(i) Except as provided in clauses (ii) through (v), in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute, with respect to which the Government is required to send written notice to interested parties, such notice shall be sent in a manner to achieve proper notice as soon as practicable, and in no case more than 60 days after the date of the seizure.
(ii) No notice is required if, before the 60-day period expires, the Government files a civil judicial forfeiture action against the property and provides notice of that action as required by law.
As indicated in the filings, notice was posted two weeks after the seizures.
Assuming that ICE did in fact file a civil judicial forfeiture action against the property, the rules would be covered by the Supplemental Rules for Certain Admiralty and Maritime Claims. Specifically, that would be Rule G, in which case Rule G(4)(b) applies:
(b) Notice to Known Potential Claimants. (i) Direct Notice Required. The government must send notice of the action and a copy of the complaint to any person who reasonably appears to be a potential claimant on the facts known to the government before the end of the time for filing a claim under Rule G(5)(a)(ii)(B).
You do realize that notice of the seizure is different than notice of the forfeiture action, right? The seizure notice was given two weeks after the seizure. This section is about notice of the forfeiture action.
There is no question that the government “did in fact file a civil judicial forfeiture action against the property.” I posted a link to the forfeiture complaint above. It was filed June 17th: http://www.scribd.com/doc/59833516/Complaint-for-forfeiture-Rojadirecta-com
The notice that’s required in that section is the notice for the forfeiture action, the one filed June 17th. Do you have any evidence that Puerto 80 was not directly notified of that action? It seems unlikely that notice wasn’t given to Puerto 80 considering the government was in talks with them.
So, yes, direct notice is required.
And you haven’t shown it wasn’t given, and there’s every reason to think it was given.
Now, the time frame for these things is fairly long. The government has 60 days to file a civil judicial forfeiture action; then “a reasonable time after filing the complaint” after the forfeiture action, to provide notice by publication on their website; then 60 days after the notice by publication.
It says they have 60 days to give notice of the seizure, not 60 days to file the forfeiture action. They gave notice two weeks after the seizure, well within the 60 days allotted.
Still, to my knowledge, none of the sites were ever contacted in this manner; they were never told “the name of the government attorney to be served with the claim and answer,” or the deadline, or even the venue. That certainly didn’t happen in this case; Rojadirecta had to hunt them down over several weeks, “but was unable to engage with the government until it notified the U.S. Attorney?s Office of its intent to seek a temporary restraining order and file a petition for immediate return of the seized domain names” – many weeks after it had sent ICE a letter requesting the domain names be returned under 983(f).
The government posted public notice of the seizures two weeks after they occurred. Puerto 80 went in and filled out the claims form seven weeks after the seizures. That started the clock ticking for the government to file the forfeiture action within 90 days, which they did. Not even Puerto 80 is arguing what you’re arguing.
I would also like to point out that ICE did not file a civil forfeiture action, until after Rojadirecta filed Seized Asset Claim Forms on March 22nd. In fact, I believe that they have not actually filed civil forfeiture actions in most of these cases. That would mean that direct notice would be required within 60 days, and that hasn’t happened.
Again, you simply misunderstand the 60 days thing. Nor do you have any evidence that public notice wasn’t given after every single seizure. It simply doesn’t say that the forfeiture complaint has to be filed in 60 days. In fact, if you read 983(a)(1)(A)(2) it contemplates that the government may not have filed the action within 60 days. You’re confusing posting notice of the seizure with filing the forfeiture complaint and giving notice of that.
Obviously I can’t be sure – because the site owners aren’t sure either, as ICE never notified them, and they have no idea what has been filed and what hasn’t.
There is no evidence that the government didn’t post adequate notice in every single seizure. Why wouldn’t they post the notice? Makes no sense. The one case where we now know for sure shows that they followed the rules.
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5A procedural due process
Incidentally: You seem to think that I am arguing that the rules themselves are in violation of the Fifth Amendment.
That is not what I’m actually arguing. I’m arguing that the government did not follow procedure, not that the procedure itself is unfair. (Though I am not opposed to that argument, either.)
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Why do you think Rojadirecta is not even making this argument if it’s the right argument? I suspect you’re misreading 983. I’ll read through it though to see just what it says.
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Why do you think Rojadirecta is not even making this argument if it’s the right argument?
They are making this argument. Start on Page 4.
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They are making this argument. Start on Page 4.
I don’t see them making the argument that the government did not follow the procedures under 983. I think you’re mistaken.
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The argument is really simple: The conduct “that drew the legal remedy in the first place” is criminal copyright infringement, and that is not “conduct with a significant expressive element.”
An editorial is of course expressive and covered by copyright. Criminal infringement of the copyright of that editorial is not conduct with a significant expressive element. Simple.
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The argument is really simple: The conduct “that drew the legal remedy in the first place” is criminal copyright infringement, and that is not “conduct with a significant expressive element.”
Alleged copyright infringement (criminal or not) certainly may have “a significant expressive element.” For example, if the allegations are false (as in the dajazz1 case).
Arcara, itself, lists out several limitations on when it does not apply. The act of copyright infringement matches all of those limitations:
– it is a sanction on expressive activity (in fact, that is its definition);
– it “has to do with books or other expressive activity” (since a website cannot be used for anything other than “expressive activity,” protected or not);
– it imposes sanctions on the distribution of particular material (i.e. material to which you do not have permission);
– ex parte seizures absolutely are “based on an advance determintation that distribution of particular materials is prohibited.”
This is not even debatable. Arcara does not apply to these, or any other, ex parte seizures of infringing material. Just as it would not apply to laws against child pornography, obscenity, or libel.
Furthermore, even laws that are “generally applicable statues” that “unduly penalize speech” are outside of Arcara’s reach. So Arcara also would not apply to taxes on ink, camping laws, anti-noise ordinances, trespassing laws, zoning ordinances, anti-littering statutes, or laws against destroying your draft card – if those laws resulted in the suppression of protected speech.
Frankly, I’m shocked ICE even brought it up, because it is obvious that it will fail.
Note that this doesn’t automatically mean that the seizures were outside the law; just that the standard is the one set in U.S. v. O’Brien, not Arcara. The O’Brien standard, for instance, was the one used in all the P2P cases (e.g. Napster).
I believe, strongly, that the seizures fail the O’Brien standard. The judge may disagree. I hope not.
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So, material covered by copyright is “nonexpressive activity?” That is totally laughable. Besides, didn’t you argue that even mostly factually material was “expressive activity” in one of the Righthaven threads?
No, the statute is not targeted at all copyright, generally. It is targeted at specific acts of criminal behavior, just like Arcara. Why must you consistently misrepresent the facts to support your biased conclusion?
Are you suggesting that books cannot possibly be infringing? You need to be arguing that; otherwise the judges specifically said Arcara doesn’t apply.
WTF? You have twisted this holding so much in attempt to win arguments that you barely make sense anymore. Your response seems completely non-responsive to the comment you quote. A statute which targets illegal behavior (i.e., prostitution, criminal copyright infringement) may result in the incidental suppression of lawful speech (distribution of books, forums/comments). Not illegal under Arcara.
Look, I know you’ve studied law. You really should know better. Arcara is a complete non-starter.
Condescending and wrong. Techdirt at its best.
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2 thumbs up.
Marked as insightful, as there is a dearth of such in this thread…
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No, the statute is not targeted at all copyright, generally.
Laws against copyright infringement are “not targeted at all copyright, generally”? That doesn’t even make any sense.
Are you suggesting that books cannot possibly be infringing? You need to be arguing that; otherwise the judges specifically said Arcara doesn’t apply.
WTF? You have twisted this holding so much in attempt to win arguments that you barely make sense anymore.
I’m not twisting anything. The Arcara ruling specifically says it only applies to laws “directed at unlawful conduct having nothing to do with books or other expressive activity.” Does copyright infringement have “nothing to do with books”?
A statute which targets illegal behavior (i.e., prostitution, criminal copyright infringement) may result in the incidental suppression of lawful speech (distribution of books, forums/comments). Not illegal under Arcara.
Just because Arcara does not apply, does not mean it is “illegal under Arcara.” Falling outside the Arcara standard does not make the government’s actions unlawful. It means only that Arcara is not relevant in determining whether government actions are lawful or not.
What is relevant is other case law. Specifically, U.S. v. O’Brien, which is indeed the governing standard for determining whether or not “a statute which targets illegal behavior may result in the incidental suppression of lawful speech:”
I have no doubt whatsoever that the judge will rule based on O’Brien, and not Arcara. Whether or not this fails the O’Brien standard is a separate issue. I believe it does, because it is “greater than is essential to the furtherance of that interest.” (See e.g. CDT v. Pappert.) The Judge may disagree.
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Alleged copyright infringement (criminal or not) certainly may have “a significant expressive element.”
No. That’s where we disagree, and where I believe you’re completely wrong. The law’s target was criminal copyright infringement, which enjoys no expressive content protections. Moreover, a judge found that there was probable cause in each case to believe that the content was criminally infringing, stripping it of any protections it might have otherwise enjoyed. The incidental effects upon other lawful speech on the site is not unlawful for the same reason it wasn’t in Arcara.
I’m not twisting anything. The Arcara ruling specifically says it only applies to laws “directed at unlawful conduct having nothing to do with books or other expressive activity.” Does copyright infringement have “nothing to do with books”?
Criminal copyright infringement has nothing to do with protected expression for the reasons stated above. The target was illegal behavior, there was probable cause of illegal behavior, the sites were shut down.
Just because Arcara does not apply, does not mean it is “illegal under Arcara.”
Oh, but it does. Why do you insist that these arguments are “outlandish”?
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The law’s target was criminal copyright infringement, which enjoys no expressive content protections.
Of course it does. Copyright law lays out a whole slew of limitations on copyright (17 USC 107-122 and 512), all of which are legitimate defenses to criminal infringement as well. That’s not even including the “it was authorized” defense, which dajaz1 and OnSmash will certainly (and legitimately) raise.
Let’s put it this way. Suppose a defense is successfully raised. Would the government have restrained protected expression? Yes, absolutely, it would have.
But that’s beside the point. Even if infringement “enjoys no expressive content protections,” it does not automatically fall under Arcara. Arcara itself lays out specific types of laws which fall outside its scope. Those laws cannot “have anything to do with books or other expressive activity;” they must “impose no restraint at all on the dissemination of particular materials;” they cannot involve “an advance determintation that distribution of particular materials is prohibited;” and they cannot “single out bookstores or others engaged in First Amendment protected activities for the imposition of its burden” – as copyright law necessarily must.
Examples – cited in Arcara itself – of what falls outside its domain, are: burning of draft cards (O’Brien); a ban on camping and sleeping in public parks (Clark v. Community for Creative Non-Violence); being banned from a military base (United States v. Albertini); and a tax on newsprint and ink (Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue). In some of those, the government was infringing on First Amendment rights, and in some of them they were not; but none of them fall under Arcara’s domain.
If what you suggest is true, then Arcara overturns O’Brien. Nowhere in Arcara was that even suggested, and nowhere in case law has that even been considered. (For example, the Supreme Court relied on O’Brien, not Arcara, in the Napster case.)
Just because Arcara does not apply, does not mean it is “illegal under Arcara.”
Oh, but it does.
Oh, but it does not. If, say, the Clean Air Act does not apply to these seizures, that doesn’t mean they are “illegal under the Clean Air Act.” It means the Clean Air Act is irrelevant. Just like Arcara is here.
Unless you mean that the seizures are not possibly legal under the O’Brien standard. If that’s what you’re saying, I might agree with you.
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Of course it does. Copyright law lays out a whole slew of limitations on copyright (17 USC 107-122 and 512), all of which are legitimate defenses to criminal infringement as well. That’s not even including the “it was authorized” defense, which dajaz1 and OnSmash will certainly (and legitimately) raise.
Let’s put it this way. Suppose a defense is successfully raised. Would the government have restrained protected expression? Yes, absolutely, it would have.
Not necessarily.
http://www2.law.ucla.edu/volokh/copyinj.htm#IVC
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http://www2.law.ucla.edu/volokh/copyinj.htm#IVC
Oddly enough, this paper is co-authored by the lawyer for Rojadirecta (Mark Lemley). I somehow doubt that he believes it applies in this case.
For example, throughout that section, they talk about defendants actually raising a defense. Nothing here, for example, would apply to ex parte seizures, where no defense could possibly be raised.
In any case, nothing here even hints at the notion that copyright law falls under Arcara, or that all copyright-related laws are automatically exempt from any First Amendment scrutiny (which is essentially what the government is alleging).
Incidentally – for a good article on Arcara, its history, and how it has been (mis)interpreted, read Freedom of expression in New York State: What remains of People ex rel. Arcara v. Cloud Books Inc.? by Jeremy Bethel.
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The defense is raised in the forfeiture action, so there is a defense. But the point there was that even if the defense proves successful, it doesn’t mean that it was necessarily constitutionally protected speech.
Nobody’s saying that all copyright laws are automatically exempt from any scrutiny. They would have to pass rational basis scrutiny, which is the minimum scrutiny. I don’t think any law gets no scrutiny. Nobody’s arguing that. The seizure statute easily passes rational basis. Arcara applies because the conduct at issue is criminal infringement, and that has no element of protected expression.
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Nobody’s saying that all copyright laws are automatically exempt from any scrutiny. They would have to pass rational basis scrutiny, which is the minimum scrutiny.
That is exactly what you, ICE, and the A.C. are arguing, because laws that fall under the Arcara standard do not have to pass any First Amendment scrutiny. Or, at least, that is what the government is arguing:
Translation: “If it’s criminal infringement, we don’t have to worry about the First Amendment at all.”
Keep in mind that this section is denying that Puerto 80 or its users could even possibly have suffered any hardship due to infringements on their First Amendment rights.
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Laws still have to pass rational basis scrutiny, which is the MINIMUM scrutiny. There’s no such thing as no scrutiny.
The government is saying that since the seizure statute does not regulate protected speech, and it has only an indirectly incidental effect on protected speech, it’s not prior restraint. That’s what Arcara says, and that’s the situation we have here with the seizure statute. So under Arcara, it’s not prior restraint.
I think you’re a bit confused about what the level of scrutiny means. It can still not be prior restraint even under heightened scrutiny, which was the case in O’Brien.
The government is not denying that Puerto 80 could have suffered as to their protected speech. The government is merely saying that under Arcara that burden is permissible. That’s exactly what Arcara says.
Rights, even free speech, can be burdened so long as the government’s interest justifies the burden.
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Incidentally – for a good article on Arcara, its history, and how it has been (mis)interpreted, read Freedom of expression in New York State: What remains of People ex rel. Arcara v. Cloud Books Inc.? by Jeremy Bethel.
And right at the beginning it states: “the U.S. Supreme Court, in Arcara v. Cloud Books, Inc., decided that legislation impacting free expression, but not directly aimed at a source of free expression, was generally constitutional. Thus, under the federal Constitution, legislation aimed at quelling activity containing no protected element–or only indirectly incidentally burdening free expression– is generally acceptable. This is true whether or not that indirect incidental burden also impacts protected speech.”
That backs my position.
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By the way, be careful with that article. Most of it is about Arcara after it was remanded back to the state court. The state court analyzed Arcara under the state constitution, and that constitution gives more speech protection than the federal one. The analysis of Arcara on remand does not apply to the federal Constitution, which is the one at issue in Puerto 80’s case.
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That backs my position.
That’s a short summary of Arcara. And no, it does not back your position, because websites are “a source of free expression.” (Indeed, any entity that is even capable of copyright infringement is “a source of free expression.”)
Not one court, ever, has used Arcara in cases of laws directed at websites. And not one court, ever, has used Arcara in a copyright infringement case. All of them have used O’Brien. For the most part, courts have only used Arcara for zoning laws (and even then, NY case law is ambivalent).
You’ve criticized me before for citing CDT v. Pappert and Fort Wayne Books v. Indiana. But Arcara is far less relevant than those cases. You’re taking a case that deals with public health and safety or zoning laws, and trying to twist it around so it applies to copyright infringement. It was simply never meant to be applied that way. It’s a square peg in a round hole.
Also, I’m aware that it deals mainly with NY state law. I just thought you’d find it an interesting read.
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It doesn’t matter if websites are a source of free expression. That’s irrelevant. What matters is that the conduct that drew the remedy in the first place is not protected speech. That the remedy has an indirectly incidental effect on protected speech doesn’t matter, as per Arcara.
It doesn’t matter if no court has used Arcara like this. That doesn’t mean it’s not the right argument. O’Brien only applies if the incidental effect is direct, meaning that the conduct that drew the remedy in the first place was partly expressive. Criminal infringement is not partly expressive, so O’Brien doesn’t apply.
It doesn’t matter that the statute in Arcara was a health or safety statute. What matters is that it wasn’t aimed at protected speech and that it’s affect on protected speech was only indirectly incidental. Arcara fits perfectly. That’s why the DOJ is using it.
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It doesn’t matter if websites are a source of free expression. That’s irrelevant. What matters is that the conduct that drew the remedy in the first place is not protected speech.
It is directly relevant, because Arcara itself says it can not apply when the law “has the inevitable effect of singling out those engaged in expressive activity.”
Just as it can only apply to laws “directed at unlawful conduct having nothing to do with books or other expressive activity.”
Just as it can only apply to laws that “would impose no restraint at all on the dissemination of particular materials.”
Just as it can not apply to actions “based on an advance determintation that distribution of particular materials is prohibited.”
Whether “the conduct that drew the remedy in the first place is not protected speech” is only one of the many ways that Arcara can not apply to a specific law or statute. You’re focusing on that exemption alone. But by that standard, Arcara would apply to libel, obscenity, or child pornography, since that “conduct that drew the remedy” is also “not protected speech.” But it absolutely does not.
There is really no way the courts could possibly be clearer on this. Arcara does not apply to any law, statute, or government action that regulates any form of speech, even unprotected speech, in any way, shape or form.
You can’t simply route around the First Amendment by shouting “copyright infringement,” no matter how hard you try.
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It is directly relevant, because Arcara itself says it can not apply when the law “has the inevitable effect of singling out those engaged in expressive activity.”
The forfeiture statute, on its face and as applied, does not single out those engaged in expressive activity since criminal infringement is not expressive.
Just as it can only apply to laws “directed at unlawful conduct having nothing to do with books or other expressive activity.”
Just like the closure statute in Arcara was directed at unlawful conduct that has nothing to do with expressive activity, so too does the forfeiture statute. Criminal infringement is not protected expression.
Just as it can only apply to laws that “would impose no restraint at all on the dissemination of particular materials.”
You misunderstand that footnote. The Court is saying that the closure statute in Arcara is unlike the closure statute in Near because the statute in Arcara “would impose no restraint at all on the dissemination of particular materials.” And this was despite the fact that it shut down a First Amendment-protected bookstore. The Court says: “the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find.” Funny how you left off the next part.
Just as it can not apply to actions “based on an advance determintation that distribution of particular materials is prohibited.”
That refers to obscenity and defamation, which were at issue in Near. Obscenity and defamation work differently than copyright in their First Amendment analysis.
Whether “the conduct that drew the remedy in the first place is not protected speech” is only one of the many ways that Arcara can not apply to a specific law or statute. You’re focusing on that exemption alone. But by that standard, Arcara would apply to libel, obscenity, or child pornography, since that “conduct that drew the remedy” is also “not protected speech.” But it absolutely does not.
Libel, obscenity, and child pornography work differently First Amendment-wise than does copyright. Arcara does not apply to those situations because other Supreme Court cases are explicitly controlling. There is no other case that explicitly controls this case.
There is really no way the courts could possibly be clearer on this. Arcara does not apply to any law, statute, or government action that regulates any form of speech, even unprotected speech, in any way, shape or form.
The Court even says that the closure statute at issue in Arcara could be said to have a burden on protected speech. In fact, they say that, “every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities.” That’s not the issue. The issue is how substantial that burden is, what governmental interests justify that burden, and the extent to which the burden is incidental. It’s all right there in Arcara. Are you reading the same case?
You can’t simply route around the First Amendment by shouting “copyright infringement,” no matter how hard you try.
It’s not routing around the First Amendment. It’s applying the proper level of scrutiny to the statute to determine if the First Amendment burden is justified by the governmental interest at stake.
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The forfeiture statute, on its face and as applied, does not single out those engaged in expressive activity since criminal infringement is not expressive.
“Those engaged in expressive activity” means classes of entities that engage in expressive behavior. Arcara does not apply to any laws that target websites in general, just as it does not apply to laws that target bookstores in general, or movie theaters in general. If that’s the case, then it’s completely immaterial whether any specific bookstore, website, or theater is engaged in criminal conduct, even if that criminal conduct is not expressive.
Did you read the case from the “child pornography” link in my last post? It is American Library Association V. Thornburgh, and the judge in that case phrased it well:
Criminal infringement is not protected expression.
It does not matter that criminal infringement is not protected expression. It only matters that websites, in general, engage in protected expression, and that the seizures target websites.
Furthermore, the mere fact that the unlawful act is not protected expression does not make Arcara applicable. The most salient fact is what kind of unlawful act it is. If it is unlawful because “specific materials are prohibited,” or the unlawful act has anything whatsoever to do “with books or other expressive activity,” or the law allows “an advance determination” that any content is unlawful – then Arcara explicitly, and absolutely, does not apply, whether the action that drew the remedy is protected expression or not.
The Court says: “the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find.” Funny how you left off the next part.
I left it off because it cannot apply in this case. The seized websites are not legally free to engage in the “dissemination of particular materials” at another location, and that’s what has to be the case in order for Arcara to apply. Imposing a restraint upon “the dissemination of particular materials” is the entire point of the seizures – the “particular materials,” in this case, being infringing materials.
That refers to obscenity and defamation
No, it absolutely does not. Nothing in Arcara even hints at this.
Obscenity and defamation work differently than copyright in their First Amendment analysis.
But they do not work differently insofar as Arcara is concerned, since Arcara is much more restricted than general First Amendment cases. Arcara only covers cases where no further First Amendment scrutiny is necessary.
If they do work differently, they work differently under the O’Brien standard.
Arcara does not apply to those situations because other Supreme Court cases are explicitly controlling.
Arcara does not apply to those situations because it explicitly says it doesn’t apply. If it did not say this, it would be controlling.
The issue is how substantial that burden is, what governmental interests justify that burden, and the extent to which the burden is incidental.
No, that is the O’Brien test. The Arcara test is much more limited. In theory, if a law meets the Arcara standard, then it doesn’t matter how substantial the burden is, or what the governmental interests are, or even if the law has a rational basis for existing. Meeting the Arcara standard means no further scrutiny is necessary.
That’s why this statement is so wrong:
It’s not routing around the First Amendment.
It absolutely is. As soon as Arcara applies, the government’s acts are exempt from all First Amendment scrutiny. That’s why the government and the seizure apologists are relying so heavily upon Arcara, despite the fact that it clearly is inapplicable. They want to sweep any First Amendment concerns under the rug.
It’s applying the proper level of scrutiny to the statute
…which, in every other copyright case, criminal or not, post-Arcara or not, has been the O’Brien standard.
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It does not matter that criminal infringement is not protected expression.
Of course it does. The Supreme Court said in Arcara: “We have applied O’Brien to other cases involving governmental regulation of conduct that has an expressive element” and that Arcara applies in cases where the activity “manifests absolutely no element of protected expression.”
The seizure and forfeiture law targets non-expressive criminal activity. Thus, whether criminal infringement is protected expression is extremely relevant to the question of which standard applies.
It only matters that websites, in general, engage in protected expression, and that the seizures target websites.
Absolutely false. The law does not “target” websites or any other class engaged in protected expression. Indeed, there is no mention of websites in the applicable statute at all. The law “targets” criminal copyright infringement wherever it may reside, which enjoys no protected expression.
The seized websites are not legally free to engage in the “dissemination of particular materials” at another location, and that’s what has to be the case in order for Arcara to apply.
Nope. You’re confusing the *unprotected* expression from the protected expression. The books could be distributed elsewhere in Arcara. The lawful expression on the websites (comments, forums, etc.) can be distributed elsewhere in this case (i.e., another domain name).
It is directly relevant, because Arcara itself says it can not apply when the law “has the inevitable effect of singling out those engaged in expressive activity.”
The law targets criminal copyright infringement which is non-expressive activity. Therefore, the law does not single out those engaged in expressive activity. Any incidental effect is tolerated under Arcara.
I appreciate the debate and respect your opinion, however, I believe we are arguing in circles at this point. I am also disappointed that you and others describe this issue as “settled” and that an opposing perspective (which is completely legitimate) is “outlandish.” The intellectual dishonesty (and biased blindness) is frustrating.
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…which, in every other copyright case, criminal or not, post-Arcara or not, has been the O’Brien standard.
What cases are you looking at?
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The only copyright cases I know of that have applied intermediate scrutiny (like the test in O’Brien) have been those dealing with the anti-circumvention provisions of the DMCA. Reimerdes and Corley come to mind, but I’d have to read those again to see exactly what was said. There, it was computer code that could be used to infringe. The computer code itself involved a degree of expression, so the DMCA provisions at issue received intermediate scrutiny, which they passed.
O’Brien used intermediate scrutiny for the same reasons. The act of burning a draft card is partly expressive and partly non-expressive. The expressive part was significant enough that intermediate First Amendment scrutiny was warranted, and the statute passed that scrutiny.
I think the issue here though is that copyright infringement is not expressive, at least when it’s wholesale copying, so any law that regulates it won’t be subjected to heightened scrutiny.
The procedural First Amendment analysis issue is less clear to me. I think that when it’s wholesale copying, like we have here, that no prior adversarial hearing is needed. But when it’s less clear than wholesale copying, like with a derivitive work, sampling, sequel, parody, fair use, etc., that a prior adversarial hearing is needed. I haven’t ironed out that research yet, but there’s where I’m at now.
With obscenity there has to be a determination that the activity is indeed obscene. That’s not a problem with wholesale copying since if I’m streaming a WWE match on my website, that’s going to be infringement most, if not all, of the time. With obscenity things are not as clear, so there are procedural safeguards. It’s a subjective determination. Infringement on the other hand doesn’t require a subjective determination, at least when it’s wholesale copying.
Let me know your thoughts…
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I just want to add too that I appreciate you making me think about this and challenging me. I know a bunch of what I say is wrong (a bunch is right too) and I’m really trying to figure out how it all works and what the right answer is. I’m not 100% convinced that my view is the right answer, and if it’s the wrong answer, I want to understand why.
I suspect that one difference between our positions is a matter of perspective. If you focus narrowly on the statute as being aimed at conduct that is not expressive, then I think Arcara wins the day. That view is that a domain name is just property used to infringe, so it can be forfeited despite the fact that protected speech is affected. The other view is that what’s seized is a domain name, which in turn blocks the content on that site, including protected speech. This is a broader view of things, and viewed like this, a prior adversarial hearing is needed since there’s presumptively protected speech involved.
The more I think about it, the more confused I get, to tell you the truth. The more I think that both sides have merit. Keep chipping away at me, Karl. It appears to be working. 🙂
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It’s so funny how all these months later Karl is still trying to complicate the situation enough so that Arcara might not apply.
He was a buffoon then and he’s a buffoon now.
I said on this blog last fall that Arcara was the key and that it would be used by gov in their prosection.
I was right.
And Masnick weaseled out of paying a charity $500 for being wrong about these seizures.
Time to start writing certain entities about his behavior there.
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Wasn’t it the stance of someone you’re agreeing with here that maybe the government is holding onto their stance of Arcara becuase they beleive it’s correct? Guess that doesn’t go both ways, huh?
And if you look to your right, you’ll see some of AC’s normal Ad Hom attacks that deftly avoid actually discussing topics.
What prosecution? This is ICE’s defense of thier actions.
Again, you try to claim victory before the race is run. I do beleive the agreement was after all everything was said and done. Since the actual legal action has yet to start (except for this company requesting its domain back), I’d hardly call this one done.
Who? The BBB? The CIA? The Enquierer? Gonna call his mommy and tell her what a bad boy he’s being for not ‘playing fair’?
That article also explains why O’Brien doesn’t apply: “The Supreme Court’s Arcara holding distinguished between regulations aimed at the source of protected expression, those that directly “incidentally burden” protected speech, as in O’Brien, and regulations not aimed at the source of protected expression, those that indirectly “incidentally burden” protected speech, as in Arcara. Regulations that directly incidentally burden protected expression are subject to intermediate scrutiny, whereas regulations that indirectly “incidentally burden” protected expression need only have a rational basis.”
The seizure statute has an incidental affect on protected speech, but it does not have a directly incidental burden on it, as in O’Brien. Instead, the seizure statute has an indirectly incidental burden on protected speech, as in Arcara. What kind of incidental burden it is matters, i.e., directly or indirectly. When it’s indirectly incidental, Arcara applies, not O’Brien.