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DOJ: This Case Has Nothing To Do With Puerto 80; Now Here Is Why Puerto 80 Is Guilty

from the dance-doj-dance dept

Following Puerto 80's motion to dismiss the attempt by the US government to forfeit its domains, the Justice Department has filed its response (pdf) in which it more or less mocks Puerto 80's lawyers for "not understanding" what they're fighting about in court. Having read both of the documents and being familiar with the case, I will agree that there is certainly some confusion (perhaps on both sides) about the exact nature of the arguments, but it appears that the government is partly the cause of this, in that it keeps leaping back and forth between arguments, since it can't make a single coherent argument for why forfeiture makes sense under the law.

Specifically, the government is claiming that its sole reason for trying to forfeit the domain (and for seizing it in the first place) is that "those domain names themselves facilitated the commission of a recognized crime." That is, it argues that Puerto 80 is wasting its time in suggesting that Puerto 80 did not engage in criminal copyright infringement, because the government has not charged Puerto 80 with anything. It's just claiming that the domains themselves are property used to commit a crime, and therefore can be forfeited.

But the government seems to want to have its cake and eat it too. That's because, in order to show that the domains were used to commit a crime, it keeps going back to actions done by Puerto 80. But then, when Puerto 80's lawyers keep explaining why Puerto 80 did not violate the law, the government tries to claim that this is meaningless because it's not accusing Puerto 80 of anything.

Talk about a disingenuous Catch-22 sort of argument.

For example, here's the kind of mocking that the DOJ presents against Puerto 80:
Despite what Puerto 80 appears to believe, the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company. Instead, and as the Complaint makes absolutely clear, the Government has brought a civil action against certain property an in rem proceeding against two domain names that facilitated the commission of criminal copyright infringement and are thus subject to forfeiture pursuant to Section 2323(a)(I) of Title 18, United States Code.
But... then... in making its case, the government still relies on actions of Puerto 80 and not the domains in question. Even worse, contrary to what the DOJ states, nowhere does it make the case that criminal copyright infringement occurred. Now, as we've stated before, for criminal copyright infringement to occur, and as the government clearly states in its filing, the government needs to show:
(1) the existence-of a valid copyright; (2) an act of infringement of that copyright; (3) willfulness on the part of the infringer; and (4) either that (a) the infringement was for purposes of commercial advantage or private financial gain, or (b) the infringer reproduced or distributed, during any 180-day period, one or more copies or phonorecords of one or more copyrighted works, with a total retail value of more than $1,000.
(1) and (2) aren't hard to show -- but the infringement is done by third parties (users of the site) rather than Puerto 80. In fact, the government even admits multiple times that the content is not hosted or distributed by Puerto 80, but by third parties. (3) is much, much trickier, and the government fails to show willfulness at all -- except to insist that Puerto 80 had willingness to infringe. Again, note that the government goes back to focusing on Puerto 80 here, even though it keeps insisting that it's not on trial. Even worse, it fails to respond to the pretty clear claims by Puerto 80 in its filing that its actions were clearly not willful since it had been tried and found not guilty of infringement twice in its home country. And yes, as people will point out, we're talking about US law, rather than Spanish law, but it's pretty ridiculous to think that Puerto 80 would go through such a huge legal process at home... and then somehow still think that it was willfully infringing on copyrights.

Point (4) is where an even bigger problem sets in. Once again, the DOJ focuses on Puerto 80 getting commercial gain:
With respect to private financial gain, the Complaint makes clear that when an Internet· user selected an individual link to a particular sporting event from the Rojadirecta website and the corresponding stream of the telecast began to run, advertisements that were separate and distinct from any commercials that may have been aired during the stream of the sporting event broadcast were periodically displayed at the bottom of the video during the live stream. (Compl. ~ 14c). On a motion to dismiss, this Court is required to draw all inferences from the allegations of a complaint in the light most favorable to the plaintiff. Roth, 489 F.3d at 510. It is certainly a permissible inference for this Court to draw that these advertisements generate revenue and result in private financial gain.
All of that is accurate... but again, it's about Puerto 80 who (again) the DOJ insists is not being sued here. Basically, the government totally fails to properly allege criminal copyright infringement, in that it doesn't show how those four elements all take place by a single party. Instead, they pull from here and there to patch together such a claim. A user of Rojadirecta may infringe... and Rojadirecta may profit from an ad shown on the site, but that's not willful copyright infringement for the purpose of financial gain. Furthermore, as the MP3Tunes case recently showed, merely having ads near infringement is not profiting from infringement: "However the financial benefit must be attributable to the infringing activity.... While Sideload.com may be used to draw users to MP3tunes.com and drive sales of pay lockers, it has non-infringing users." Merely the fact that infringing content can "draw" users to the site doesn't mean that the profit is directly from infringement.

So, while it is true that Puerto 80's lawyers may have argued for much more than the specific issue at stake in this case, it's in part because the DOJ itself keeps shifting its argument. It can make cases for civil infringement against users. It might be able to make a case for civil inducement for Puerto 80... but what it's doing -- quite amazingly -- is mashing together both of those arguments to pretend that two separate civil issues chopped up together can adequately show criminal copyright infringement... and from that they can claim that the domains were used for such things.

If anything, it seems that Puerto 80's lawyers were too clever in arguing ahead of the DOJ, who I'm still not entirely convinced understands what it's really arguing here. Puerto 80's lawyers didn't just try to show that no full criminal copyright claim was presented by the government. It also tried to debunk the two parts of the (4) factors that the DOJ tried to pin on Puerto 80. The government then says it doesn't care what Puerto 80 did, even as it uses its own questionable claims of what Puerto 80 did to make its case. It's really quite stunning.

On a separate note, even though Puerto 80's lawyers chose not to use the First Amendment claim, the Justice Department seems to be begging for it. As we've noted in the past, the ruling in Fort Wayne Books v. Indiana makes it clear that a standard higher than probable cause needs to be used in seizures:
Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved... It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule.
But here the government is arguing in the other direction saying the standard is even lower than probable cause! It's saying that it just needs "reasonable belief," now that the case has moved on to the forfeiture stage, rather than just discussing the seizure:
Nor is the Government required to show probable cause for forfeiture. See,~, Daccarett, 6 F.3d at 47. Instead, the complaint simply needs to establish a "reasonable belief' that the government will be able to meet its burden at trial. Id. "In other words, the complaint need not allege facts sufficient to show that specific property is tainted, but facts sufficient to support a reasonable belief that the government can demonstrate" the ultimate trial burden "for finding the property tainted."
I'm at a loss to see how this makes any sense at all. Remember, the judge in the case has already said that Puerto 80 can't challenge the seizures on First Amendment grounds, because trampling your First Amendment rights is not a "substantial hardship." That, alone, seems like something that should be appealed. But it also seems like it wipes out any avenue for challenging the seizure on First Amendment grounds, because the standard now being discussed is merely "reasonable belief." Now, it is true that this is just for the motion to dismiss, and the standard at trial is going to be higher, but, honestly, why should a trampling of free speech have to wait so far into the process before being resolved? Plenty of other cases are willing to put the First Amendment issue upfront and center...


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    The eejit (profile), Aug 30th, 2011 @ 8:57am

    Morbo says...

    SEIZURES DO NOT WORK THAT WAY! RRRRAGH!

     

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  2.  
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    Anonymous Coward, Aug 30th, 2011 @ 9:17am

    If no crime was committed then the domains were obviously not used to commit a crime. Too bad basic logic is beyond government-employed lawyers.

     

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  3.  
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    :Lobo Santo (profile), Aug 30th, 2011 @ 9:21am

    Re: Doublething

    Double-think is a requisite skill for all highly-placed government employees; especially those in the DOJ.

     

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  4.  
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    Anonymous Coward, Aug 30th, 2011 @ 9:25am

    Government never said a crime wasn't committed.
    Pretty telling that the sloppy defense above was the best Pirate Mike could come up with.

     

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  5.  
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    PaulT (profile), Aug 30th, 2011 @ 9:29am

    Re:

    The people who pay them need them to be able to seize domains at a whim. The government (I believe) has to prove criminal activity in order to make it legal/reasonable without falling foul of the constitution. It's a tricky situation, and logic just gets in the way. Especially since any reasonable form of logic would show Puerto 80 to be innocent of any criminal activity, even if they were based in the country where they are accused of committing wrongdoing.

     

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  6.  
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    PaulT (profile), Aug 30th, 2011 @ 9:32am

    Re:

    Yes, we know. Arguments based on logic and multiple legible sentences are too confusing for you. My condolences for living a world more complicated than you can handle. Go back to kindergarten so that the adults can handle the debates that don't depend on ad hominem attacks as half of a 2 sentence post.

     

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  7.  
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    Rikuo (profile), Aug 30th, 2011 @ 9:35am

    Re:

    For god's sake, man, read the article. The "sloppy defense" is the government playing hopscotch by saying in one instance that Puerto 80 is at fault, and then later on, going "No, no, no, we're not charging Puerto 80 at all!"

     

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  8.  
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    Anonymous Coward, Aug 30th, 2011 @ 9:52am

    I'm at a loss to see how this makes any sense at all. Remember, the judge in the case has already said that Puerto 80 can't challenge the seizures on First Amendment grounds, because trampling your First Amendment rights is not a "substantial hardship." That, alone, seems like something that should be appealed.

    It is being appealed to the Second Circuit already.

     

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  9.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:02am

    You said: " because trampling your First Amendment rights is not a "substantial hardship.""

    It isn't. Please read the laws and judgements to make yourself familiar with what is considered a substantial hardship. As Puerto 80 continues to be in business, any "hardship" is hardly substantial.

    It's a whiny statement at best, and one we have already debunked here on techdirt before.

     

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  10.  
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    AC, Aug 30th, 2011 @ 10:04am

    Troubling

    This is a very troubling argument that the gov. is making. If the requirement for seizing a domain is that someone used it for committing a crime (not the owner), that means that all safe harbor provision are largely mute and meaningless. It's a gutting of the applicable liability statues.

     

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  11.  
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    Chronno S. Trigger (profile), Aug 30th, 2011 @ 10:05am

    Re:

    Having to deal with this BS court case doesn't qualify as substantial hardship?

     

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  12.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:09am

    Re:

    "As Puerto 80 continues to be in business, any "hardship" is hardly substantial."


    Do you have to go out of business before it counts as a substantial hardship?

     

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  13.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:13am

    Re: Troubling

    ya, why hasnt google been seized yet for allowing people to google how to commit crimes?

    im having trouble seeing the difference here.

     

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  14.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:14am

    5th ammendment

    I'm not so sure that it's kosher to take away the dns name from Puerto 80 without charging them with something.

    "...nor shall any person be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

     

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  15.  
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    wvhillbilly (profile), Aug 30th, 2011 @ 10:14am

    Government property seizures

    Our government has become arrogant beyond measure. If you care to check out www.naturalnews.com you will find story after story of government raids on food stores, suppliers of natural supplements, cherry growers, sellers of raw milk, and now even an armed raid, guns drawn, on the manufacturers of Gibson Guitars over alleged violations of some obscure, vaguely worded law. Our federal agencies, particularly the FDA and the USDA, are totally out of control,

    I have written my congress people regarding this, but I don't know how much good it is going to do. If enough of us write and complain of these criminal raids on our citizens maybe they'll take notice and do something about it.

     

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  16.  
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    Christopher Weigel (profile), Aug 30th, 2011 @ 10:19am

    Re:

    I think the government is claiming something resembling the following:
    The domain was used to commit a crime, but Puerto 80 is not the criminal in question. Instead, they're simply providing the vehicle that some criminals (and many legitimate users) happen to employ in the course of their activities.

    Granted, this a completely weird way to go about stopping criminals. In real-world terms, it seems roughly analogous to the following:
    I ride a city bus on my way to commit murder.
    Therefore, the city bus was used in the process of committing a crime.
    Therefore, the government seizes the bus.

     

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  17.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:21am

    Re: Re:

    Pretty much, substantial hardship is basically "feed your family" sort of logic.

     

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  18.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:22am

    Re: Re:

    Puerto 80 are the ones suing here, not the Government.

     

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  19.  
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    Jay (profile), Aug 30th, 2011 @ 10:30am

    Re: Re: Doublething

    "Double-think is a requisite skill for all highly-placed government employees; especially those in the DOJ."

    So the prereqs must be Cha 9 Wis 7 Int 13.

    +4 to bluff

    The NPC is able to hold two lines of paradoxical thought meant to obfuscate and alter reality in others. If used, players have to roll 13+ on a d20 or fall susceptible to thinker's expressed opinion.

    If unsuccessful, all prevailing checks suffer a cumulative -2 effect.

     

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  20.  
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    Jay (profile), Aug 30th, 2011 @ 10:30am

    Re:

    Any links by chance?

     

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  21.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:31am

    Re: Re:

    Yet they fail to show that any criminal infringement occurred, either by the provider or the users. That is kind of the issue.

     

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  22.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:33am

    Re: Re: Re:

    Based upon allegations by the government. That you blame Mike for the Government's failure is rather baffling. You also say 'Government never said a crime wasn't committed.' Funny that no one else said that, either. It's being shown that the government is claiming a crime WAS committed, while failing to show any evidence of that crime.

    Please, TRY to keep up.

     

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  23.  
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    Josh in CharlotteNC (profile), Aug 30th, 2011 @ 10:35am

    Re: Re: Doublething

    Double-think is a requisite skill for all highly-placed government employees; especially those in the DOJ.

    So that's why they hire so many former RIAA/MPAA people.

     

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  24.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:36am

    Re: Re: Re:

    Forgive my ignorance, but why is there such a high bar before a 1st amendment argument is permissible?

     

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  25.  
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    Josh in CharlotteNC (profile), Aug 30th, 2011 @ 10:40am

    Re: Re:

    Instead, they're simply providing the vehicle that some criminals (and many legitimate users) happen to employ in the course of their activities.

    So because it's moderately difficult to correctly identify the actual guilty parties, we'll just seize the whole thing?

    And you only call that "weird"?

     

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  26.  
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    Mike Masnick (profile), Aug 30th, 2011 @ 10:40am

    Re: Re: Re:

    Puerto 80 are the ones suing here, not the Government.


    Not true. This part of the case (forfeiture) is the government initiated part of the case.

     

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  27.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:41am

    Re: Re: Re: Re:

    There is a big legal difference between asking for the seizure to be set aside pending trial, and what happens at trial. Please look at the judge's ruling in the motion to understand the difference.

    Puerto 80 can (but apparently did not) bring up first amendment issues in the actual case. But during this stage, a motion to stop the seizure only succeeds if there is "substantial hardship" created by the seizure, which is clearly not the case here.

     

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  28.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:41am

    This sounds a lot like the law regarding property forfeiture where the government charges NOT the criminal but their property. This also puts the burden of proof on the property, to prove that it wasn't acquired with the fruits of a criminal action.

    The whole thing reeks, but since police departments (and other government bureaus) get the proceeds of forfeiture sales it's pretty common. (it's especially common in cases related to the "War on Drugs")

    -abs, posting anon since he doesn't want to set up an account

     

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  29.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:42am

    Re: 5th ammendment

    Except that they are in the middle of due process, and the property is not being used for "public use".

     

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  30.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:51am

    Re: Re: 5th ammendment

    "Except that they are in the middle of due process"

    Except Puerto 80 had to initiate the lawsuit. The government seemed happy to seize their property without charging them. "the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company".


    "The property is not being used for "public use"."

    It is so. That domain name now directs to a government page saying that the site has been seized by ICE.

     

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  31.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:51am

    Re: Re: 5th ammendment

    "Except that they are in the middle of due process"

    Except Puerto 80 had to initiate the lawsuit. The government seemed happy to seize their property without charging them. "the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company".


    "The property is not being used for "public use"."

    It is so. That domain name now directs to a government page saying that the site has been seized by ICE.

     

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  32.  
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    Joshy, Aug 30th, 2011 @ 10:54am

    So can the government now seize my local bank because a crime of bank robbery has occurred and most likely will occur again....or money laundering...or withdrawing cash to pay for illegal drugs? Or my local Starbucks be seized because it too was held up and the drug deal went down there or the money from a drug deal was used to purchase a Latte was used or a conversation in the lobby on all kinds of illegal activity occur there or a racist joke was told....Where does this nonsense stop?

     

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  33.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:54am

    Re: Government property seizures

    The US government stopped listening a long, long time ago. You can write as many letters as you want, but until Americans in general show their government that they're pissed off and want change, nothing ever will.

     

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  34.  
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    dfed (profile), Aug 30th, 2011 @ 10:55am

    Re: Morbo says...

    They also give Morbo gas.

     

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  35.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:57am

    Re: Re: 5th ammendment

    http://rojadirecta.com/

    sure looks like the government (the public) is using this property. Looks like public use to me.

     

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  36.  
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    Anonymous Coward, Aug 30th, 2011 @ 10:57am

    Re: Re: Re: 5th ammendment

    "Except Puerto 80 had to initiate the lawsuit"

    My mistake - I see that the government did initiate this.

    (also - Sorry for the double submission. I don't know how that happened. Mods, Feel free to delete one.)

     

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  37.  
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    Loki, Aug 30th, 2011 @ 11:06am

    Re:

    Government never said a crime wasn't committed.

    Nope, they're just trying to claim that two different, smaller crimes together form a totally different larger crime (even though the law itself doesn't allow for that) and that the larger crime is somehow the fault of person X even though the smaller crimes were allegedly committed by person Y and person Z.

    It's like saying someone who may have robbed a convenience store with a gun, and someone else who may have beat up his girlfriend almost certainly rode in Jim's cab at some point. So this makes Jim guilty of murder.

    Trying to postulate a logical defense against an attack that is largely illogical isn't all that easy. It's like trying to hold a rational conversation with a deranged psychotic.

     

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  38.  
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    ramjet57 (profile), Aug 30th, 2011 @ 11:15am

    Re:

    Pretty sad that the best you could come up with was name calling.

     

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  39.  
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    Jeffrey Nonken (profile), Aug 30th, 2011 @ 11:15am

    Re: Re: 5th ammendment

    So due process has not been completed, but the property has already been seized.

     

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  40.  
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    ramjet57 (profile), Aug 30th, 2011 @ 11:19am

    Re:

    Pretty sad that the best you could come up with was name calling.

     

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  41.  
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    Anonymous Coward, Aug 30th, 2011 @ 11:38am

    Re: Re: Re: 5th ammendment

    It's a “post-legal” world.

    The new government is not limited by quaint, 18th, 19th, and 20th century notions of “due process” or “fundamental fairness”.

    Instead, as demonstrated, the government asserts the power to take anything —at any time— on any pretext. What the government is doing is wrong. But no-one shall chastise them: for they are very powerful.

    In their arrogance, they mind not the lessons they teach.

     

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  42.  
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    Jay (profile), Aug 30th, 2011 @ 11:41am

    Re: Re: Re: Doublething

    No, they just paid for Obama's campaign.

     

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  43.  
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    CommonSense (profile), Aug 30th, 2011 @ 11:48am

    Re: Re: Doublething

    Double-think?? That's funny, I always kind of thought it was "no-think"....just because 'double'-think implies the ability to think in the first place.

     

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  44.  
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    Killer_Tofu (profile), Aug 30th, 2011 @ 11:50am

    Re: Re: Re: Re:

    I guess he should just not speak until he gets a law degree huh?

     

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  45.  
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    taoareyou (profile), Aug 30th, 2011 @ 12:00pm

    Explain to me

    If the U.S. can take websites from other countries, why doesn't it just seize all terrorist communication websites, and a significant portion of websites in China, Russia, and any other country where the US deems the website violates US laws, regardless of how the home country views it?

     

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  46.  
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    Anonymous Coward, Aug 30th, 2011 @ 12:05pm

    The Bigger Picture

    First off, I'll admit that i have not read the majority of the comments here. I apologize if i state somethign that has already been covered.

    In the bigger picture, it seems to me that the federal government is causing itself a huge injury in that this case is a clear demonstration that the DOJ is not interested in pursuing action based on the law. I move that the bigger picture is that the rule of law is beginning to break down in favor of special interests.

    That said, you can look to one place to see the motivation for this. And this is not to say that he is directly involved in this decision, but Obama controls the DOJ. He appoints the attorney general who in turn oversees these cases and attorneys. Nor am I saying that only Obama would do this. There are plenty of Republicans that would have allowed this as well.

    The really sad fact is that due to the DOJs funding source, I can see no good outcome in this case. If the DOJ wins then the US suffers via increase in state power and if the DOJ loses the US suffers via lost tax revenue - not to mention that the stupidity of the DOJ merits sanctions against the lawyers and legal fees for Puerto 80.

     

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  47.  
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    Anonymous Coward, Aug 30th, 2011 @ 12:15pm

    Re: Explain to me

    If the U.S. can...

    Might makes right.

     

     


    “Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.”
         ——Mr Justice Brandeis

     

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  48.  
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    Anonymous Coward, Aug 30th, 2011 @ 12:17pm

    Re: Re: Troubling

    for all the horribleness that is the dmca, sites do get protection from their users' actions; but they need to be playing on the right team

    puerto 80 is based in spain

     

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  49.  
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    Anonymous Coward, Aug 30th, 2011 @ 12:22pm

    Re: Re:

    "Despite what Puerto 80 appears to believe, the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company. Instead, and as the Complaint makes absolutely clear, the Government has brought a civil action against certain property an in rem proceeding against two domain names"


    So to be clear, they are only bringing charges against the bus, not the owner of the bus. (to delve further into silliness) Are the advertisements on the side of the bus inadmissible in court (i.e. in order to prevent self-incrimination)? Perhaps an insanity plea might work, after all I think they'd have a hard time showing that the bus is Competent to stand trial.

     

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  50.  
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    Anonymous Coward, Aug 30th, 2011 @ 12:35pm

    Re: Re:

    It's Court of Appeals Docket #: 11-3390. I can't link to it. It's on PACER if you have an account. There's only appearances by attorneys, no petition yet.

    Presumably this appeal to the Second Circuit is where they'll make the First Amendment argument. I'm not sure if I agree with this strategy. The issue on appeal (I think) is narrow: Is the seizure a "substantial hardship" as defined by Section 983? I don't see how it is, given that a "substantial hardship" means your kids aren't being fed (or something like that). Why they're not bring up the First Amendment in the forfeiture action is beyond me.

     

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

  51.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 12:38pm

    Re: The Bigger Picture

    Explain how you think that losing this case would result in lost tax revenue. I would think the opposite. I would think that this whole ICE (and protect IP act) campaign to scare companies from doing business with US registrars, financial providers, and advertisers would result in lost tax dollars.

    Maybe you meant lost campaign contributions?

     

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

  52.  
    icon
    Jay (profile), Aug 30th, 2011 @ 12:44pm

    Re: Re: Re:

    I believe it was explained before that during the forfeiture action is after the fact?

    The best time for it was when they did it.

    The only other thing I could see is that they're watching the government's actions, seeing how their argument unfolds.

     

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

  53.  
    icon
    Mike Masnick (profile), Aug 30th, 2011 @ 1:00pm

    Re: Re: Re: Re: Re:

    Puerto 80 can (but apparently did not) bring up first amendment issues in the actual case. But during this stage, a motion to stop the seizure only succeeds if there is "substantial hardship" created by the seizure, which is clearly not the case here

    Wrong again. The question of substantial hardship was not in this part of the fight, but in the previous part -- when Puerto 80 sought to get the domain name back from seizure. It was pre-forfeiture and before the gov't filed its forfeiture part.

    The "substantial hardship" question was separate from this part.

     

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  54.  
    icon
    Mike Masnick (profile), Aug 30th, 2011 @ 1:04pm

    Re: Re: Re: Re: 5th ammendment

    My mistake - I see that the government did initiate this.


    There are two separate things going on which may explain your confusion.

    Puerto 80 did have to initiate the attempt to get the domain back, when it filed to have the domain returned from *seizure*.

    After that, the government filed for "forfeiture" of the domain, which is what this current part of the fight is about.

    So, while Puerto 80 did make the first move to get the domain back, that part of the case technically "closed" and we moved onto the second part, which the gov't initiated.

     

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

  55.  
    icon
    Franklin G Ryzzo (profile), Aug 30th, 2011 @ 1:04pm

    Re: Re: Government property seizures

    Unfortunately as long as we can be kept sedated with the Jersey Shore, and the Kardashians, and all the other crap that is passed off by the networks as entertainment or news, not enough people will ever care or even know that this is happening. We live in a time where even the future of the global economy (the recent debt ceiling fiasco) is treated as reality tv. I wonder what the tipping point will actually be before the people decide to take back what's theirs, or will it be too late?

     

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  56.  
    identicon
    Jose_X, Aug 30th, 2011 @ 1:08pm

    Re: Re: Re: Re: Doublething

    If they continue to be incompetent in prosecuting, they can stay there until the train hits them for all I care, but it is unfair to some of those caught in the web.

     

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

  57.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 1:27pm

    Re: Re: Re: Troubling

    According to the DOJ, they're "based" enough in Arizona and subject to domestic laws.

     

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  58.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 1:29pm

    I would interpret the government's claims in this case as exactly analogous to its equally unjustified and unconstitutional claims in drug cases. The government can seize a house from its owner if the house was used by ANYone selling illegal drugs, regardless whether the OWNER sold illegal drugs or even knew the drugs were being sold there. The owner doesn't even have to know the person who sold the drugs. The cops can legally STEAL the house from someone without even charging them with a crime. That's what they're trying to do in this case, and they'll probably succeed, unless some court finally throws out the whole legal theft by government law.

     

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  59.  
    identicon
    Dave, Aug 30th, 2011 @ 1:52pm

    Re: Re:

    You can say that again.

     

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

  60.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 2:04pm

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

    Yes, and following up on that pre-trial, Puerto 80 did not raise any first amendment issues. It is likely that first amendment issues would come to naught, considering their activities would be considered illegal if they were based in the US, and would not be protected speech.

     

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

  61.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 2:08pm

    Re: Re: Re: Re: Re:

    Puerto 80 is not the only party with a first amendment stake here. That it is or is not a 'substantial hardship' to them is not the only thing that's relevant.

     

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

  62.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 2:54pm

    Re: Re: The Bigger Picture

    TIME = MONEY. The government is paying those lawyers to pursue that case. A case which has no merit. A case that will likely be lost by the US government. Thus, the tax payers who foot the bill for those lawyers are losing tax revenue. Wasted time = wasted money.

     

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

  63.  
    icon
    lucidrenegade (profile), Aug 30th, 2011 @ 3:54pm

    Re: Re: Re:

    The bus should get 20 years to life for this heinous crime!

     

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

  64.  
    icon
    lucidrenegade (profile), Aug 30th, 2011 @ 3:56pm

    Re: Re: Re:

    Wow, an AC with an intelligent post. Those are few and far between here. Kudos to you, sir.

     

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

  65.  
    icon
    lucidrenegade (profile), Aug 30th, 2011 @ 4:00pm

    Re: Re: Re: Re: 5th ammendment

    They also seem to be relying more and more on their "interpretation" of a law, or just making one up as they go.

     

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

  66.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 5:00pm

    RD's lawyers: "The government has no authority to take our domains because this law, and this law, and this law, and all these very similar cases, and this maxim of law, and the potential dangers to the entire Internet from allowing them to do it, and common sense, all say that they can't."

    Government's lawyers: "We're not saying RD did anything wrong. We just want to take their domains. We can only do this when a crime was committed. Therefore, crimes were committed and we can take their domains."

    Look out Righthaven! You've got some competition for the next chutzpah prize.

     

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

  67.  
    icon
    wvhillbilly (profile), Aug 30th, 2011 @ 6:01pm

    Re: Re: Re: Doublething

    Doublethink-my definition--thinking two different, illogically connected things at the same time. Like, "We don't have any proof or evidence, but he's guilty anyway."

     

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

  68.  
    icon
    wvhillbilly (profile), Aug 30th, 2011 @ 6:20pm

    Re: Re:

    Here's another analogy: A man beats another man over the head with a claw hammer and kills him. So the government stages a guns-drawn armed SWAT raid on the company that manufactured the hammer, shuts it down and seizes all its assets because it provided the murder weapon. Never mind the company had nothing to do with the murder, never intended the hammer to be used as a weapon, had no knowledge of how the killer came by the hammer (he might have stolen it), and probably had no knowledge of the murder.

    Hypothetical situation, hypothetical outcome. But most of the actual raids the government has carried out make about as much sense as the above. And it makes about as much sense as the ICE seizing a domain name when they can't even prove a crime has been committed, much less by the company whose domain name they are seizing.

     

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

  69.  
    icon
    wvhillbilly (profile), Aug 30th, 2011 @ 6:42pm

    Re: Re: Re: Government property seizures

    @Franklin Ryzzo:
    Unfortunately as long as we can be kept sedated with the Jersey Shore, and the Kardashians, and all the other crap that is passed off by the networks as entertainment or news, not enough people will ever care or even know that this is happening.

    In my estimation 90% of the stuff our main media networks (ABC, NBC, CBS) feed us in prime time is nothing but audio-visual pig slop, stuff that appeals to the gross, carnal nature of unsaved human beings. And it's steadily getting worse.

     

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

  70.  
    identicon
    Michael, Aug 30th, 2011 @ 7:40pm

    Re:

    They in fact do claim a crime wasn't committed by stating they aren't charging them with it. They are not allowed to not charge them with the crime, they do not get to decide who is charged and who is not where they see a crime committed. They are to file charges and proceed to court. If they were allowed to decide who follows the law and who doesn't, there would be no equality in the justice system. Therefore, by not charging them, they are saying there is no crime.

     

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

  71.  
    icon
    BearGriz72 (profile), Aug 30th, 2011 @ 8:17pm

    Re: Re:

    Unfortunately "prosecutorial discretion" allows precisely that.

     

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

  72.  
    identicon
    Anonymous Coward, Aug 30th, 2011 @ 8:56pm

    Re: Re: Re: The Bigger Picture

    But any money already spent is a sunk cost, and to win nets no gain to displace the money. So, wouldn't they be better off to cut losses, stop the bleeding of money, and 'lose' this case and just give it back?

    However the failing in this, is that if not this, another case, or another. They probably are paying most of the players in this, even if no case was ongoing, (particularly the judges and agents), so the only cost MIGHT be the lawyers, if they are no salaried. Then again they probably would have the lawyers work on something else anyways so...

    Win or lose, sue or give up, we the people throw money at lawyers by the proxy of the government.

    Wow, I think I just depressed myself.

     

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

  73.  
    icon
    The eejit (profile), Aug 30th, 2011 @ 11:43pm

    Re: Re: Re: The Bigger Picture

    Is it wrong when goblins in a fantasy game show more sense than the DoJ?

     

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

  74.  
    icon
    TheBigH (profile), Aug 30th, 2011 @ 11:53pm

    Re: Re: Re: Re: Doublething

    Your tears say more than real evidence ever could.

     

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

  75.  
    identicon
    Anonymous Coward, Aug 31st, 2011 @ 3:31am

    Here's a good analogy for the guy that brought up drug law forfeitures:

    This is like the government seizing your house because you know where all the local drug spots are and tell anyone who knocks on your door and asks, whether they're a cop or a crackhead.

     

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

  76.  
    identicon
    Paul Keating, Aug 31st, 2011 @ 4:46am

    in Rem and Crimes

    "If no crime was committed then the domains were obviously not used to commit a crime. Too bad basic logic is beyond government-employed lawyers."
    I think what the Government is trying to do is to use the literal words of the statute "in connection with a crime" to take the property. They appear to want to argue that (like the bus example above) all they need to do is show that the property was "used" "in connection with" a "crime". Thus, they point to Roja as an example but not THE only example. Their argument as to commerce seems to be that if ANYONE in the channel is making money, the element is satisfied. This of course ignores the requirements that the commercial benefit be by the “infringer”.
    One hopes that the court sees the lack of logic in this argument. In some examples the argument could work (I allowed someone to use my car and they used it to smuggle drugs - I should still be permitted to recover the car if I had no knowledge or did not grant permission). Taken to an extreme, however, the argument would support the taking of any property if that property were used in the most remote connection with a crime.

     

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

  77.  
    identicon
    AC, Aug 31st, 2011 @ 5:33am

    Re:

    Yes, which is the real troubling part about this. From this filing, it seems like they're not arguing that Puerto actually broke the law at all, only vague allegations that someone, somewhere must have.

    The DMCA is specifically set up to handle these types of online cases. It says as long as you respond to actual knowledge of infringement you're fine and free from liability.

    The interpretation of the law that DOJ is proposing is that the DMCA doesn't matter. (They don't bring it up at all despite it being designed specifically for these cases, and forfeiture laws being clearly meant for physical goods/items.) If someone used your webpage to commit copyright violations, you're going to be held liable under this logic. That would mean the end to all user generated content on the web as there is no way for a host to ensure everything is not in violation of copyright. Based on the DOJ logic, they don't even have to prove that criminal conduct occurred, only allegations are fine. (Hell, nobody has even been charged with criminal conduct and there is no evidence that they're even persuing it at all as Puerto would have to know about any proceedings against its users as they're the only ones who could resolve anonymous user names into some real word identifiers. The first step in action against Rojadirecta users would be a supeona to Puerto to find out the identities of the applicable users.)

    This entire arguement is full of deeply troubling reasoning.

     

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

  78.  
    identicon
    AC, Aug 31st, 2011 @ 5:38am

    Re: in Rem and Crimes

    The part that I think is real shady though is nobody is actually accused of a crime. There are just vague accusations that it was committed somewhere by someone. They don't even site an actual user name (which is weak, but at least something). There appears to be no persuit of actual criminal case against anyone, yet a crime was most definitely committed (according to DOJ).

    The other issue is that the DMCA seems to be the most applicable statue for this sort of circumstance. It says that the host is not responsible for the actions of its users (given some small steps taken by the host). The DOJ says that all doesn't matter, only that a nebulous, poorly defined crime was committed.

     

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

  79.  
    icon
    Jay (profile), Aug 31st, 2011 @ 8:19am

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

    How can it be considered illegal when it has no precedent?

     

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

  80.  
    identicon
    Anonymous Coward, Aug 31st, 2011 @ 8:45am

    The government's theory of the case is finally clear. The problem for the government is that it's clearly faulty. The government is arguing that Puerto 80 is the principal criminal, when at best they are merely aiders and abettors. The government has to make a showing that the domain names were used to facilitate a crime, and the government hasn't made a showing of any criminal copyright infringement--there's not enough for the court even make the inference.

    Frey, in an attempt to show that Puerto 80 is the direct infringer, runs through the elements of criminal copyright infringement under Section 506 of the Copyright Act:

    (1) The existence of a valid copyright: Frey states that "the sports leagues hold valid copyrights to the broadcast of their respective sporting events." The court must accept this as true, and it's a reasonable inference that if Rojadirecta was streaming these sporting events, the sports leagues hold the copyrights at issue. This element is not a problem.

    (2) An act of infringement of that copyright: Mike picks up on the problem here when he says, "but the infringement is done by third parties (users of the site) rather than Puerto 80. In fact, the government even admits multiple times that the content is not hosted or distributed by Puerto 80, but by third parties."

    That's a huge problem for the government. Frey is immediately in trouble when he says the "Rojadirecta Domain Names clearly facilitated acts of distribution that constitute copyright infringement." Facilitated as in aided and abetted. Apparently he forgot already that he's arguing that Puerto 80 did the infringement, not facilitated it. He's already contradicting himself. I agree with Mike that the government is "leaping back and forth between arguments."

    The final two elements suffer the same confusion. Since Puerto 80 can't be the principal criminal for merely linking, looking at their willfulness, private financial gain, or how much they reproduced or distributed the works is irrelevant. If he wants to show there's been a crime, he needs to be talking about the party that actually did the infringement, i.e., the principal. Instead, he's talking about the aider and abettor. It's circular logic.

    The domain names are forfeitable if the government can show by a preponderance of the evidence that they facilitate the commission of criminal copyright infringement. While Puerto 80 is not on trial, it is clear that Frey thinks that Puerto 80 is the principal criminal. To be the principal criminal, Puerto 80 must commit direct infringement. The forfeiture complaint does not allege that Puerto 80 committed direct infringement. Since the government has not alleged that the domain names facilitate the commission of criminal copyright infringement, the motion to dismiss should be granted as a matter of law.

    I'm sure there's holes in my reasoning. Feedback?

     

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

  81.  
    identicon
    HothMonster, Aug 31st, 2011 @ 9:17am

    Re: Re: Re:

    that

     

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

  82.  
    identicon
    Anonymous Coward, Aug 31st, 2011 @ 11:02am

    Re: Re: Re: Re:

    Well apparently I overlooked it, but there is an emergency motion before the Second Circuit where Puerto 80 is arguing the First Amendment issue. I'm sure Mike will have a story soon.

     

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

  83.  
    identicon
    Hans, Aug 31st, 2011 @ 7:29pm

    The War on....

    Heh, the US government has successfully used the same sort of seizure/forfeiture logic for decades, most notably in the War on Drugs. Money, cars, houses, and other valuable property would be charged with a crime. When the owners tried to fight, they would be stonewalled and otherwise denied justice. The US Constitution didn't apply since inanimate objects don't have rights under it... Real Alice in Wonderland stuff.

    Isn't our government grand?

     

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

  84.  
    identicon
    Anonymous Coward, Sep 1st, 2011 @ 2:15am

    Re:

    The main problem is that this is a forfeiture case not a copyright infringement case. The judge should completely disregard the crap Frey is trying to pull here and ask for the docket number of any pending or completed copyright infringement cases relating to the domain names or get the fuck out of his courtroom.

     

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


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