As Feds Drop Bogus Domain Seizure Cases, Another Site Admin Held Without Bail And About To Be Deported

from the the-importance-of-good-legal-help dept

While the cases of Dajaz1 and Rojadirecta have shown that the US government wants nothing to do with lawsuits around domain seizures when those sites lawyer up with strong legal teams, it has continued to railroad those with less-than-stellar legal support. We saw it with NinjaVideo where it was clear that the defendants did not have particularly strong legal advice, and because of that were pretty much forced into plea bargains. And, now, the same basic thing appears to have happened with a guy named Yonjo Quiroa, who had nine different sites that ICE seized in January of this year. They arrested Quiroa in February, and he's not only been held without bail since then, but he's now done a plea bargain in which he's pleading guilty to a misdemeanor charge, expecting to get 6 to 12 months in jail (remember, he's already been there for 7 months) and will then be "removed from the United States."

From the letter his lawyers sent on his behalf to the court, it's clear that Quiroa was given a public defender. There certainly could be differences between his case and others, but the differences between the cases where sites had well-known, widely respected litigators, and those where they did not, is pretty stark. Of course, the feds understand this and use it to their advantage in pushing those they've gone after into plea bargain deals. Now, don't be surprised when ICE's John Morton starts using the case of Quiroa as an "example" of all the great successes they've had in seizing websites...


Reader Comments (rss)

(Flattened / Threaded)

  1. This comment has been flagged by the community. Click here to show it
     
    you cant stop me i am king of all trolls hahahaha i am so evil

     

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

  2.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 5:46pm

    Once Again, Outcome will be:

    As I said here earlier today, "A system (a new internet, if need be) will be devised where NO government is capable of seizing domains, period.

    Perhaps governments could still BLOCK them if in their own countries if they must (politics will settle that one). But seize them? Never!"

    I'm fairly sure that it's already being worked on.

     

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

  3.  
    icon
    That One Guy (profile), Aug 31st, 2012 @ 5:57pm

    Pre-emptive jail time to 'convince' people to plead guilty... I can not wait to see how they try and justify that.

    Will it be 'Nothing to see here, national security', perhaps the ever popular 'But... Piracy!', or will they finally be honest enough to admit that they just don't care about that whole 'legality' thing, as those pesky 'laws' and 'rights' just get in the way of fighting the top scourge of the century: People Sharing Files Online.

     

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

  4.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 6:03pm

    Re: Once Again, Outcome will be:

    Check out TOR, though sadly without more support you are limited to a dialup connection. The sites are rather sparse as well. I suggest Tails, just load on a CD and browse anonymous: https://tails.boum.org/
    Search for .onion on your favorite search engine, and start browsing.

    It's basically a tool for anything on the dark web, which is rather scary so be for-warned.

     

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

  5.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 6:24pm

    Actually, his case is pretty easy to figure out: The sites were directly and aggressively marketing itself as a source to watch the Superbowl and other major sporting events. There isn't much to hide from here, the guy was willfully and intentionally putting content that was knowingly infringing on his sites, and marketing it accordingly.

    There isn't much wiggle room here.

     

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

  6.  
    icon
    Karl (profile), Aug 31st, 2012 @ 6:53pm

    Re:

    the guy was willfully and intentionally putting content that was knowingly infringing on his sites

    This is completely wrong. He was not putting any infringing content on his sites.

    According to the complaint, the only thing that Quinoa was doing was providing links to pre-existing streams on other sites. In other words, he would be the equivalent of a myVidster user.

    He is not even alleged to have uploaded any infringing material to any streaming website. Nor is he even alleged to have had any direct contact with anyone who did.

    In other words, he's not even allegedly guilty of direct infringement; and he's not even allegedly guilty of "aiding and abetting" the direct infringers. It is extraordinarily likely that he has not broken any criminal law at all.

    But even if he was guilty of "aiding and abetting" infringement, it would only be infringing the public performance right. This is not a felony; even with repeat offenses, it can only be a misdemeanor at most.

    It's likely that this is what he pleaded guilty to.

     

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

  7.  
    icon
    gorehound (profile), Aug 31st, 2012 @ 7:03pm

    Indefinite Jail Time with No Warrant coming up soon for guys who break the Holy Copyright Law.

     

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

  8.  
    identicon
    RD, Aug 31st, 2012 @ 7:33pm

    Re:

    "Actually, his case is pretty easy to figure out: The sites were directly and aggressively marketing itself as a source to watch the Superbowl and other major sporting events. There isn't much to hide from here, the guy was willfully and intentionally putting content that was knowingly infringing on his sites, and marketing it accordingly."

    Since he only provided LINKS, and not the content, Google, Bing and Yahoo should also be held liable and arrested as he was, as they are guilty IN THE EXACT SAME MANNER as he is.

     

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

  9.  
    icon
    Zos (profile), Aug 31st, 2012 @ 8:02pm

    Re:

    justify it? that's just business as usual. there'll be no justification because 90% of cases never go to a jurt, they overcharge you, tell you if you force a jury trial and lose they'll give you decades, but if you just plea out to a lesser everyone goes home early.
    Then they get you for violating probation and you spend the next ten years being milked for fines and fees and in and out of custody.

     

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

  10.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 8:35pm

    Re: Re:

    Do Google, Bing and Yahoo exclusively focus on providing links to infringing content? Because there's a difference.

     

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

  11.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 11:14pm

    Re: Re:

    "This is completely wrong. He was not putting any infringing content on his sites."

    Karl, the courts see through that shit. If his site has a page called "SEE THE SUPER BOWL LIVE FOR FREE ON OUR SITE" and he embeds the illegal stream, he is right there infringing. He isn't taking user supplied content and acting as an innocent host, he's actively and aggressively aiding, abetting, and profiting from infringement.

    The courts ain't fooled by that shit.

    He plead guilty because... he is. He didn't do it once, he did it over 9 different sites with the same intentions.

    Sorry Karl, it's hard to argue here. He's not an innocent host, he's not a link site - it's a guy actively adding content that he knows infringes on his site. Petty criminal perhaps, but a crook none the less.

     

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

  12.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 11:56pm

    Re:

    Yup. Death penalty, soon after that. Done for copyright holders for free by the US Government, on accusation, with no trial. Your taxes at work.

    Governments doing the dirty work of special interests is a very bad sign. Come on, you US voters, hold Congress responsible. Do your duty.

     

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

  13.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 1:39am

    Re:

    It's okay - there will be the electric chairs for people spreading hyperbole and bullshit. Hopefully they don't read techdirt, otherwise you are fried!

     

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

  14.  
    icon
    Richard (profile), Sep 1st, 2012 @ 2:32am

    Re: Re: Re:

    Do Google, Bing and Yahoo exclusively focus on providing links to infringing content?

    According to Bob they do..

     

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

  15.  
    icon
    ECA (profile), Sep 1st, 2012 @ 2:40am

    equality of justice

    I wish to enter into an alternative thought..

    HOW about at the hearing you SWAP LAWYERS..
    wouldnt this be an interesting concept for justice??

     

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

  16.  
    icon
    That Anonymous Coward (profile), Sep 1st, 2012 @ 4:48am

    Re: Re: Re:

    But sadly the courts seemed to be fooled by the idea that if the Government says it isn't violating the 4th amendment it isn't happened even when there is evidence showing otherwise.

    "profiting from infringement" vs "SEE THE SUPER BOWL LIVE FOR FREE ON OUR SITE"

    Free and profit, the cartels claim that is impossible so the courts can't accept that.

    The fact he has been held for this long as they tried to get him to accept and agreement raises questions about a speedy trial, and how the system punishes people who demand a fair trial rather than being forcefed plea deals.

    But he is a horrible person so it is perfectly fine to abuse the law to get the outcome that lets them show off their amazing record.

     

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

  17.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 6:12am

    Re:

    your url field should link to something goatse-esque. You know, to better serve the trolled masses

     

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

  18.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 7:40am

    Re: equality of justice

    So basically everyone would try to hire Charles Carreon?

     

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

  19.  
    identicon
    Ma Swe Swe Aung, Sep 1st, 2012 @ 8:14am

    My Lift

    I Live in Mindat Township.
    Southern Chin State.

     

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

  20.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 8:39am

    Re: Re: Re: Re:

    Glad I kept the debunking boots on, makes it easier to wade through the muck.

    "Free and profit, the cartels claim that is impossible so the courts can't accept that."

    As soon as you say "cartels" it's pretty much hard to take you seriously. It's laughable to think you would have anything other than a totally one sided opinion when you start there.

    "The fact he has been held for this long as they tried to get him to accept and agreement raises questions about a speedy trial, and how the system punishes people who demand a fair trial rather than being forcefed plea deals."

    Actually, the time between arrest and arraignment in most criminal trials is short, but from there to the actual trial can be literally a year or more. Often in the preliminary stages, each motion hearing can add 4 to 6 weeks wait as everyone goes through the motions, notices filed, posted, served, and the like.

    It should be noted as well that this guy appears to have been held as much for reasons of immigration as anything else, as he is apparently getting deported once his sentence is served. There is potential, as a result, that his plea deal is to shorten the time to the inevitable, rather than rotting in jail for any amount of time waiting.

    "But he is a horrible person so it is perfectly fine to abuse the law to get the outcome that lets them show off their amazing record."

    Nobody says he is a horrible person - he is a person with poor choices of businesses to enter into. In my life I have met many evil people with decent jobs or real businesses, and I have met totally nice and gentle people who sell drugs or steal for a living. The acts don't always define the person.

    "But sadly the courts seemed to be fooled by the idea that if the Government says it isn't violating the 4th amendment it isn't happened even when there is evidence showing otherwise."

    Not sure how you get to a 4th Amendment issue here. Due process does not suggest that someone can continue an illegal business until judgement is rendered, in the same manner that a dope dealer does not get to retain his scales or the car he delivered the drugs in pending the trial. On the surface, the case can be and has been made that the sites are illegal, and a cursory look at them would certainly make it appear that way. It's perfectly reasonable for seizure of these assets to happen until the case is resolved.

    Basically, you "cartel"-ed yourself into a bunch of bunk, which has now been debunked. I hope it helps you out.

     

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

  21.  
    icon
    Karl (profile), Sep 1st, 2012 @ 8:44am

    Re: Re: Re: Re:

    Holy Crap, sorry about leaving out a closing tag. I'd edit it if I could.

     

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

  22.  
    icon
    average_joe (profile), Sep 1st, 2012 @ 9:56am

    Re: Re: Re: Re:

    Karl, with respect, I think you and Mike view things too narrowly. The law on linking, embedding, and streaming is far from settled, but I think there are good arguments for why it's broader than either of you see it.

    Quiroa linked to copyrighted works so they could be streamed. Since it's streaming, only the public performance right is implicated. I think we agree on that. That's what the Second Circuit said is United States v. ASCAP, and I think that's the correct view. If there's no downloading for later viewing, then the mechanical rights of distribution/reproduction are not implicated (ignoring for now the possibility of RAM copies and such).

    Embedding a video to be streamed by others violates the public performance right. There is no doubt about that. The debate is over whether the embedder is a direct or indirect infringer. You say that it's only indirect liability. I think that's reasonable, since one who embeds authorizes the performance (and only the right holder has the right to authorize performances). The embedder is still an infringer, but their liability is secondary, not primary. That, of course, doesn't really matter since they're still liable for the infringement, but there is the distinction to be made.

    But there is also an argument that the embedder is a direct infringer. To be directly liable for infringement of the public performance right, "a defendant must have engaged in conduct that is volitional or causally related to that purported infringement." In re Cellco Partnership, 663 F.Supp. 2d 363, 370 (S.D.N.Y. 2009). Furthermore, "to impose direct liability, there must be a nexus sufficiently close and causal to the illegal infringement that one could conclude that the defendant himself trespassed on the exclusive domain of the copyright owner." Id. (internal citations and brackets omitted).

    An embedder's conduct is volitional and causally related to the performance, and the nexus is sufficiently close. In fact, there is an argument that merely embedding the video is itself a performance, even if no one actually clicks "play" and watches the video. Posner pointed out that this is a possibility, and there's plenty of case law to support it. The key is in understanding that a public performance requires only that the video is able to be perceived, not that it has actually been perceived. As Nimmer points out, "a public performance merely requires that such performance be open to, that is, available to, a substantial number of persons. It is not necessary that they in fact attend or receive the performance." 2-8 Nimmer on Copyright § 8.14 (internal quotation marks omitted).

    In fact, the House Report discussing the public performance right is instructive:
    This language makes doubly clear that] a performance made available by transmission to the public at large is “public” even though the recipients are not gathered in a single place, and even if there is no direct proof that any of the potential recipients was operating his receiving apparatus at the time of the transmission. The same principles apply whenever the potential recipients of the transmission represent a limited segment of the public, such as the occupants of hotel rooms....; they are also applicable where the transmission is capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public.
    H.R. Rep. No. 83, 90th Cong., 1st Sess. at 29. Note the word "capable."

    As for cases saying that linking is infringement simpliciter, there are several. Try this:
    Litigation over copyright protections for live internet webcasts has not made its way into controlling Fifth Circuit opinions (nor any other circuit court opinions that this court could find). Opinions addressing copyright protection for live television broadcasts, however, provide appropriate, analagous guidance in this case. In National Football League v. PrimeTime 24 Joint Venture, the Court upheld a permanent injunction against Defendant PrimeTime, which provided unauthorized satellite transmissions of the NFL's copyrighted weekly live broadcasts of football games to viewers in Canada. 211 F.3d 10 (2d Cir.2000). PrimeTime had argued that “capturing or uplinking copyrighted material and transmitting it to a satellite [did] not constitute a public display or performance of that material.” Id. at 12. The court rejected that argument by reviewing similar copyright infringement actions, as well as legislative history, and stated:

    We believe the most logical interpretation of the Copyright Act is to hold that a public performance or display includes each step in the process by which a protected work wends its way to its audience. Under that analysis, it is clear that PrimeTime's uplink transmission of signals captured in the United States is a step in the process by which NFL's protected work wends its way to a public audience. In short, PrimeTime publicly displayed or performed material in which the NFL owns the copyright. Because PrimeTime did not have authorization to make such public performance, PrimeTime infringed the NFL's copyright.Id. (internal quotations and citations omitted).

    The court finds the reasoning used by the Second Circuit to be sound and persuasive; and the court adopts the reasoning used in Prime Time. Davis essentially attempts to make the same argument as PrimeTime by stating that he has an “affirmative defense” because he provides the “same audio webcast link freely distributed by ClearChannel.” Using the same approach, the court determines that the unauthorized “link” to the live webcasts that Davis provides on his website qualifies as a copied display or performance of SFX's copyrightable material.
    Live Nation Motor Sports, Inc. v. Davis, 3:06-CV-276-L, 2007 WL 79311 (N.D. Tex. Jan. 9, 2007) (emphasis added).

    So it's not as simple or as cut and dried as you and Mike seem to think. Linking to infringing material is itself infringement. Whether it's direct or indirect infringement is debatable. I know you both like the server test, but that test has only been adopted by the Ninth Circuit. Others have rejected it. Either way, the server test only speaks to direct liability, and it doesn't say that a linker is not liable. It only says their not liable as a direct infringer. But so what? They're still liable and subject to the full range of remedies under the Act.

    Bottom line is that the law is unsettled, and there is support in the case law and commentary for more than one view.

     

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

  23.  
    icon
    average_joe (profile), Sep 1st, 2012 @ 10:16am

    Re: Re: Re: Re:

    I think you're misreading those cases you mention.

    The Ninth Circuit panel in Kelly v. Arriba Soft actually said that inline linking directly violates the public display right:
    Although Arriba does not download Kelly's images to its own server but, rather, imports them directly from other web sites, the situation is analogous to Webbworld. By allowing the public to view Kelly's copyrighted works while visiting Arriba's web site, Arriba created a public display of Kelly's works. Arriba argues that Kelly offered no proof that anyone ever saw his images and, therefore, there can be no display. We dispose of this argument, as did the court in Webbworld, because Arriba made the images available to any viewer that merely visited Arriba's site. Allowing this capability is enough to establish an infringement; the fact that no one saw the images goes to the issue of damages, not liability.
    Kelly v. Arriba Soft, 280 F.3d 934, 946 (9th Cir. 2002) opinion withdrawn and superseded on denial of reh'g, 336 F.3d 811 (9th Cir. 2003) (emphasis added).

    That opinion was withdrawn for procedural reasons, not because the reasoning was unsound, but it shows you that the issue is far from settled. The passage I quoted endorses the argument that merely making an image available is a public display, even if there's no proof that any clicked on the link or displayed it. It also rejects the "server test" reasoning.

    The Ninth Circuit in Perfect 10 found that Google would be a contributory infringer for linking:
    Here, the district court held that even assuming Google had actual knowledge of infringing material available on its system, Google did not materially contribute to infringing conduct because it did not undertake any substantial promotional or advertising efforts to encourage visits to infringing websites, nor provide a significant revenue stream to the infringing websites. Perfect 10, 416 F.Supp.2d at 854–56. This analysis is erroneous. There is no dispute that Google substantially assists websites to distribute their infringing copies to a worldwide market and assists a worldwide audience of users to access infringing materials. We cannot discount the effect of such a service on copyright owners, even though Google's assistance is available to all websites, not just infringing ones. Applying our test, Google could be held contributorily liable if it had knowledge that infringing Perfect 10 images were available using its search engine, could take simple measures to prevent further damage to Perfect 10's copyrighted works, and failed to take such steps.
    Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007) (emphasis added).

     

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

  24.  
    icon
    average_joe (profile), Sep 1st, 2012 @ 10:17am

    Re:

    Actually, his case is pretty easy to figure out: The sites were directly and aggressively marketing itself as a source to watch the Superbowl and other major sporting events. There isn't much to hide from here, the guy was willfully and intentionally putting content that was knowingly infringing on his sites, and marketing it accordingly.

    There isn't much wiggle room here.


    I agree. He intentionally embedded links to videos hosted elsewhere so people could stream them. I think his conduct is a direct violation of the public performance right.

     

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

  25.  
    icon
    Josef Anvil (profile), Sep 1st, 2012 @ 10:38am

    Re: Asshat

    "Actually, his case is pretty easy to figure out: The sites were directly and aggressively marketing itself as a source to watch the Superbowl and other major sporting events. There isn't much to hide from here, the guy was willfully and intentionally putting content that was knowingly infringing on his sites, and marketing it accordingly."


    You are an asshat. Was this guy's site dodgy? Hell yes. Was it criminal? No. You are right about no wiggle room. In order to be guilty of criminal copyright infringement, you have to first infringe on copyrighted material, not simply link to it. Being arrested in the US and held for 7 months without committing a crime and with no evidence of a crime is pretty damn serious.

    The fact that judges are not "falling for" the law is equally outrageous. Guess what that says to people. If judges willfully ignore the law because they don't feel it's right, then why shouldn't the public ignore laws they don't feel are right?

     

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

  26.  
    icon
    average_joe (profile), Sep 1st, 2012 @ 11:21am

    Re: Re: Re: Re:

    Let me throw this out there too, Karl.

    Section 106 gives the right holder the exclusive right (1) "to do," and (2) "to authorize" a public performance.

    The exclusive rights "to authorize" a public performances is meant "to avoid any questions as to the liability of contributory infringers." H.R. Rep. No. 1476, 94th Cong., 2d Sess. 61.

    So one who violates the right "to do" a public performance is a direct infringer, and one who violates the right "to authorize" a public performance is a contributory infringer. The important thing to note is that both are infringers of the 106 right. Whether they're a primary or secondary infringer doesn't matter. Both are infringers, and both are treated the same under the Act.

    Section 501 defines infringement:
    Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.
    Since only the right holder has the exclusive right "to do" or "to authorize" a public performance, anyone who violates either action ("to do" or "to authorize") is an infringer.

    Quiroa pleaded guilty to Section 506(a)(1)(A), which provides:
    (a) Criminal infringement.--(1) In general.--Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed--(A) for purposes of commercial advantage or private financial gain;
    Notice how it only refers to one who infringes a copyright (as is defined in Section 501), and makes no reference to whether it was a violation of the right "to do" or "to authorize." Either one is sufficient to impose criminal liability under Section 506.

    You are saying that one who violates the "to do" is a direct infringer, but one who only violates the "to authorize" is an aider and abettor. I don't see how that matters. One who violates the right "to authorize" a public performance is an infringer, and Section 506 clearly makes that infringement a criminal act without the need to bring in aiding and abetting like is outlawed in 18 U.S.C. 2.

    The Copyright Act makes linking a crime whether you consider it to be a violation of the right "to do" or "to authorize" a public performance. It matters not which one in particular the defendant has done since both are treated equally.

    Does that make sense?

     

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

  27.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 12:51pm

    Re: Re: Re: Re: Re:

    1. Define a private cartel: "A cartel is a formal agreement among competing firms." - Wikipedia
    2. Which corporations does the MPAA represent: Wikipedia
    Now from the words of a former MPAA employee, Jon Leibowitz, speaking about the risks of trade associations easily becoming cartels: FTC Speech

    Seems to me that the risk is rather high on many accounts, could be price fixing media, could be price fixing licenses, could be non compete agreements, etc...

     

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

  28.  
    icon
    Thomas (profile), Sep 1st, 2012 @ 1:35pm

    Public Defenders

    Are overworked and often poor attorneys who can't make a living in the regular attorney offices. They tell way way too many defendants (especially people of color) to plea bargain when they know full well that the defendants are not guilty. Heck there are even people on trial for murder whose 'public defendants' fell asleep during the trials.

    I would guess that at least 50% of the people who get convicted/plea bargain with public defenders would be found not guilty if they had a decent attorney.

     

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

  29.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 5:10pm

    Re: Re: Once Again, Outcome will be:

    The "Dark Web" still lies on top of the current internet vehicle and is still vulnerable to domain seizure.

    What I am alluding to will be very different. Domains as we know them today might simply not exist and there will be nothing to seize. Perhaps data could still be blocked at a destination (domain seizure is far, far more extreme than blockage at a destination) and as I said politics will sort it (the latter) out.

    Things have barely begun. It would be wise to expect the unexpected.

     

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

  30.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 6:04pm

    Getting a bit off-topic

    The way .onion sites work is a public/private key, so the domain name is just a public key that you yourself create. This public key also corresponds to the Node address which doesn't really exist either outside of the TOR network. So it greatly differs from that of ICANN and normal DNS. You can't revoke a key, and you can't impersonate a key without the private key. More info at the TOR site: link

    About the most that can be done to a site has simply been DDOS attacks and hacking the servers as has been shown through the Anonymous taking down a Child Porn hosting service. Since traffic to .onion sites stays strictly through the TOR network everything is completely encrypted and bounces around the network randomly to find a path, so it's even about impossible to find out where the traffic originates or is destined to.

     

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

  31.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 7:39pm

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

    1. Nice try. You would lump every industry association as a cartel. Do you are saying the Mike wrote for the Google cartel?

    2. Notice "former" employee. You don't think perhaps he has an ax to grind? The potential for price fixing and such exists with or without an association, the players in most industries all know each other anyway. They don't need some special association handshake to make it possible.

    So, now that has been debunked too. Plenty of bunk in this discussion, no?

     

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

  32.  
    identicon
    confused onlooker, Sep 1st, 2012 @ 8:21pm

    Re:

    What I don't get is if Posner has ruled Embedding Infringing Videos Is Not Copyright Infringement, And Neither Is Watching Them then how can a link site be infringing or committing any criminal act by providing a link to where the non infringing content is?

     

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

  33.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 8:29pm

    Re: Re: Re: Re: Re:

    Joe, let me add this into the discussion.

    One of the common threads around here is that "merely linking to" or "merely embedding" isn't infringing. But I think many people here miss the nuance. As you cited in Perfect 10 v Amazon, there are ways that even a search engine MIGHT be considered to be aiding infringement. It's not as simple as "it's a link, dummy".

    Further, in this particular case, you get a further nuance. A site operator intentionally adding a link to infringing material or adding a link which causes infringement to happen (public display) are doing so of their free will. Unlike an automated bot system like Google, these site operators are hand coding pages or writing blog entries to specifically provide access to these contents.

    They understand and know that they have not obtained the rights for public display, they know they haven't received license or approval, and yet they do it anyway. It's pretty hard to argue that they did not know, especially in the case of something like a PPV event or the Superbowl, that the work was copyright to someone and would require a license to distribute or give public display.

    Many sites try to hide behind the "user submitted" or "automatically linked" defenses, but that too is still with risk. If some of the accounts on your site can be noted as fake, sock puppets, or site owned, then you risk that all that those "users" have done to be your responsibility. Automated systems that look only for infringing sports feeds, as an example, are not much better - the intent is to aid infringement.

    Sites like Google tend to avoid liability because they hoover up the entire internet without discrimination. Even then, they are still running the risk of liability, but so far nobody has pushed a case far enough to figure it out. Clearly, Google stepping up their DMCA enforcement could be construed as an attempt to NOT end up there. It's my opinion that Google can see the legal headwind coming against some parts of their business models, and they want to be the good citizen long before it's mandated.

    I think that most of the arguments get back to intent. What is the intent of the site operator, and what is the result. This case is a good example where the intent and the result were pretty obvious, and a plea bargain is probably the best that this guy could hope for. Mike (and co.) may not like it, but it's pretty obvious, even if you have to squint through the kool-aid dispenser.

     

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

  34.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 8:30pm

    Re: Re: Asshat

    Josef, I get a giggle out of you calling me an asshat. Clearly, your post is pure asshat work at it's best.

    Read the whole story, and pay attention. Then you won't be such an asshat next time.

     

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

  35.  
    icon
    average_joe (profile), Sep 1st, 2012 @ 9:29pm

    Re: Re:

    What I don't get is if Posner has ruled Embedding Infringing Videos Is Not Copyright Infringement, And Neither Is Watching Them then how can a link site be infringing or committing any criminal act by providing a link to where the non infringing content is?

    I would recommend reading what actual lawyers say about the case. Mike's reading of it is a bit off.

    Barry Sookman has a great writeup: http://www.barrysookman.com/2012/08/08/understanding-flava-works-v-myvidster-does-inline-linking-inf ringe-copyright/

    Arron Bartell has another: http://tmtlaw.default.wp1.lexblog.com/2012/08/15/not-so-fast-did-the-7th-circuit-really-just-say-its -okay-to-embed-copyright-infringing-videos-on-the-web/

    I recommend reading the amicus brief filed by Google and Facebook in the myVidster case: http://docs.justia.com/cases/federal/appellate-courts/ca7/11-3190/17/0.pdf

    They explain that linking to infringing material can itself be infringement, though they argue that it's indirect (but not direct) infringement:
    To say that linking can never be direct copyright infringement is not to say that linking can never lead to copyright liability of any sort. Copyright law has well-developed doctrines of secondary liability—contributory infringement and vicarious infringement—which can hold liable a culpable party when that party has not, himself, done an act which directly infringes one of the exclusive rights. The specific requirements of these doctrines may be inquired into in the context of linking in the same way that they are applied to any other activity. “To support a claim for contributory copyright infringement, a plaintiff must demonstrate (1) direct infringement by a primary infringer, (2) the defendant’s knowledge of the infringement, and (3) the defendant’s material contribution to the infringement.” Monotype Imaging, Inc. v. Bitstream, Inc., 376 F. Supp. 2d 877, 883 (N.D. Ill. 2005) (citations omitted). “[A] defendant is vicariously liable for copyright infringement if it has the right and ability to supervise the infringing activity and also has a direct financial interest in such activities.” Hard Rock Cafe Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143, 1150 (7th Cir. 1992) (internal quotation marks omitted).

    Thus, holding that myVidster is not a direct infringer—or that its users are not direct infringers—will not leave Flava Works without a path to a possible remedy. If Flava Works can show that myVidster or its users had knowledge of infringement and that their activities were intended to materially contribute to that infringement, myVidster or its users could potentially be liable as contributory infringers. If Flava Works can show that myVidster or its users had the right and ability to supervise the particular infringing performances and also had a direct financial interest in those performances, myVidster or its users could potentially be liable as vicarious infringers. But one cannot simply say, as the court below did, that myVidster must be enjoined because there has been infringement by someone, somewhere, that was facilitated by the operation of the myVidster website.
    (emphasis added).

     

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

  36.  
    icon
    average_joe (profile), Sep 1st, 2012 @ 9:40pm

    Qu

    Those are great points. Google takes down links from its search results when it receives notice that the link points to infringing material. The reason it does so is that once it has knowledge that the link is infringing, Google becomes liable for whatever infringement happens using the link it thereafter provides.

    The law imputes the intent to cause the natural consequences of its action. Providing a link to infringing material naturally causes infringement to occur by those who click on the link. So one who knowingly provides a link to infringing material is liable for infringement.

    Linking websites like the one at issue here are liable for the infringement that occurs via the links provided. Quiroa can't claim to not have knowledge (i.e., intent) like Google can with its search results. He knew the links he provided were for infringement, so he's responsible for the infringement that occurs using the links.

     

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

  37.  
    identicon
    Anonymous Coward, Sep 2nd, 2012 @ 12:14am

    Re: Re:

    "Since he only provided LINKS, and not the content, Google, Bing and Yahoo should also be held liable and arrested as he was, as they are guilty IN THE EXACT SAME MANNER as he is."

    Aside from the amusing use of CAPITAL LETTERS, let's address your point.

    The guy running this site specifically, and with intention, linked directly to infringing content, with full knowledge of the infringement, did it on between 9 and 16 different websites, and did it for a profit.

    Are you suggesting that his intentional acts are on par with acts of a bot cataloging the whole internet?

    I know you are a silly sort a times RD, but you cannot be this silly.

     

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

  38.  
    icon
    techflaws (profile), Sep 2nd, 2012 @ 3:07am

    Re: Re:

    pot, meet kettle.

     

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

  39.  
    identicon
    confused onlooker, Sep 2nd, 2012 @ 3:28am

    Re:

    So do you feel that a specialized search engine (which would be seen as a link site) or indeed the likes of Google can in any way avoid becoming a contributory or vicarious infringer?

    For instance by:

    a) adding a generic no knowledge statement

    or

    b)adding a no knowledge warning statement that appears in between the link being selected and transfer being made to where the content is being shown

    and

    c) following DMCA (or DMCA like) procedures so that once a link has been identified as infringing copyright to permanently block it

    and

    d) return to the copyright holder or their representative any revenues earned by the link site that can be identified as directly attributable to the identified link.

     

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

  40.  
    icon
    average_joe (profile), Sep 2nd, 2012 @ 6:18am

    Re: Re:

    It comes down to knowledge and intent. Once the search engine has knowledge that a specific link points to infringing material, it is imputed with the intent to cause whatever infringement happens when users click on that link.

    Just adding a statement that they don't have knowledge won't mean a thing if the plaintiff can show there was actual or constructive knowledge.

    The DMCA safe harbors would protect the search engine, but again, only if the search engine has no knowledge, either actual or constructive, of the infringing link.

    Returning revenues to the right holder would be a nice gesture, but it would have no bearing on the issue of liability. The search engine would still be liable for the infringing links it knowingly provided.

    Google avoids liability because it takes down infringing links when given notice of their existence. Thus, Google doesn't knowingly and intentionally provide any infringing links.

     

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

  41.  
    identicon
    Anonymous Coward, Sep 3rd, 2012 @ 10:44am

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

    What a curious definition of 'debunking' you have.

    Putting on cowboy boots doesn't make you a cowboy.

     

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

  42.  
    identicon
    Anonymous Coward, Sep 3rd, 2012 @ 9:02pm

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

    What was posted was bunk. I debunked it :)

    NEXT!

     

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

  43.  
    identicon
    Anonymous Coward, Sep 3rd, 2012 @ 10:42pm

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

    Point 2 is just being plainly dismissive. Ex-employees aren't even usually agressive towards former employers. This isn't a valid argument for you to make.

     

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

  44.  
    identicon
    Anonymous Coward, Sep 4th, 2012 @ 9:00am

    Re: Re:

    page 5 of the complaint says that they recorded between 5-7 minutes of illegally broadcast sports. doesn't that put them in violation also?

     

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

  45.  
    icon
    John Fenderson (profile), Sep 4th, 2012 @ 9:26am

    Re: Re: Re: Once Again, Outcome will be:

    The "Dark Web" still lies on top of the current internet vehicle and is still vulnerable to domain seizure.


    There is nothing that requires any site to use a domain name. Domain names are purely for human convenience. "The Dark Web" can (and does) avoid this problem by simply not using them -- sometimes by replacing them with a different human convenience and sometimes by just using IP addresses directly.

     

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

  46.  
    icon
    John Fenderson (profile), Sep 4th, 2012 @ 9:30am

    Re: Re: Re:

    I'm not attacking or defending this guy -- I don't know enough about this case. However...

    He's not an innocent host, he's not a link site


    This can't be possibly be correct. He's not an innocent host, true, because he's not actually hosting anything at all. So, if he's not hosting anything then logically he must be running a link site. That a link is presented as an embedded stream doesn't make it any less of a link.

     

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

  47.  
    icon
    John Fenderson (profile), Sep 4th, 2012 @ 9:33am

    Re: Re: Re:

    The guy running this site specifically, and with intention, linked directly to infringing content, with full knowledge of the infringement, did it on between 9 and 16 different websites, and did it for a profit.


    So what?

    Seriously, why not focus the attention on the 9-16 sites that were actually engaging in direct infringement? They're not hard to find -- this guy is helpfully pointing to them.

     

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

  48.  
    icon
    Karl (profile), Sep 6th, 2012 @ 1:09am

    Re: Re: Re: Re: Re:

    AJ:

    I know I'm late with all of this, but I'm back in college now. However, I'll try to address the cases you brought up.

    Live Nation Motor Sports, Inc. v. Davis

    This was a motion for preliminary injunction, not a ruling on the merits; all that was necessary was a likelihood of success. Also, it was issued by a district court, not a circuit court; it's not even binding on other districts - much less the entire circuit. (Though, obviously, the circuit court could find it relevant.)

    Since that injunction, linking has been held not to be infringing at the Circuit level, in multiple Circuits.

    Kelly v. Arriba Soft

    You're referring to a case that was withdrawn, as you said. But to say it was only "for procedural reasons" is not quite accurate.

    That case was explicitly discussed - and completely shredded - in Perfect 10 v. Google. The court's description of the case is entirely apropos:
    In its now-withdrawn opinion in Kelly v. Arriba Soft Corp., 280 F.3d 934 (9th Cir. 2002) [hereinafter, "Kelly I"], amended by Kelly II, 336 F.3d 811 (9th Cir.2003), the Ninth Circuit discussed liability for direct infringement resulting from in-line linking, without addressing how the technology functioned—i.e., who stored and served the infringing content. Defendant Arriba operated an image search engine much like Google's—it in-line linked to and framed, but did not store or serve, full-size copies of Kelly's photographs. Stating that "[n]o cases have addressed the issue of whether inline linking or framing violates a copyright owner's public display rights," id. at 945, the Ninth Circuit nevertheless analogized to Webbworld and Hardenburgh, ignored the fact that the defendants in those two cases actually hosted and served the infringing content, and concluded that Arriba had directly infringed Kelly's exclusive right to display. Kelly I, 280 F.3d at 945-47.
    Like the defendants in Webbworld and Hardenburgh, Arriba is directly liable for infringement. Arriba actively participated in displaying Kelly's images by . . . having its program inline link and frame those images within its own web site. Without this program, users would not have been able to view Kelly's images within the context of Arriba's site. Arriba acted as more than a passive conduit of the images by establishing a direct link to the copyrighted images. Therefore, Arriba is liable for publicly displaying Kelly's copyrighted images without his permission.

    Id. at 947.

    The decision in Kelly I was roundly criticized:
    If [the] logic [of the original opinion in Kelly] is valid, it should ensnare AOL, Dell, Microsoft, and Netscape as well. Indeed, it condemns those other actors a fortiori: the user of those products can see Kelly's entire web site displayed, whereas Arriba only offers a portion of Kelly's material, framed by its own proprietary content. Accordingly, Arriba's usurpation of Kelly's display right is even less than the others.'

    4 Nimmer on Copyright [hereinafter "Nimmer"] § 12B.01[A][2] (2005).

    Some seventeen months later, perhaps "reflect[ing] sub silentio that the panel no longer believed in the substance of its much-criticized conclusion," id., the Ninth Circuit withdrew the portion of the Kelly I opinion dealing with direct infringement on procedural grounds.


    That case also cited a huge number of other cases that said, explicitly, that linking cannot be direct infringement:
    Certain other decisions, some unpublished, do deal with traditional hyperlinking—i.e., rather than incorporating thirdparty content via in-line linking or framing, websites create hyperlinks that transport the user directly to the linked-to, infringing page. Each of these cases holds that such linking does not implicate any of the exclusive rights under copyright. Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654, 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (unpublished) ("[H]yperlinking does not itself involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no copying is involved."); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n. 12 (N.D.Cal.2004) ("[H]yperlinking per se does not constitute direct copyright infringement because there is no copying, [although] in some instances there may be a tenable claim of contributory infringement or vicarious liability."); Bernstein v. JC Penney, Inc., No. 98-2958, 1998 WL 906644, at *1 (C.D.Cal. Sept. 29, 1998) (unpublished) (granting, without discussion, defendant's motion to dismiss on the ground that hyperlinking cannot constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement).


    they are also applicable where the transmission is capable of reaching different recipients at different times...

    A link (including an embed) is simply not a "transmission." This is made abundantly clear in the MyVidster case:
    myVidster is giving web surfers addresses where they can find entertainment. By listing plays and giving the name and address of the theaters where they are being performed, the NewYorker is not performing them. It is not "transmitting or communicating" them. Is myVidster doing anything different? To call the provision of contact information transmission or communication and thus make myVidster a direct infringer would blur the distinction between direct and con-tributory infringement and by doing so make theprovider of such information an infringer even if hedidn’t know that the work to which he wasdirecting a visitor to his website was copyrighted. [...] myVidster doesn’t touch the data stream, which flows directly from one computer to another, neither being owned or operated by myVidster.


    You are saying that one who violates the "to do" is a direct infringer, but one who only violates the "to authorize" is an aider and abettor.

    Except merely linking to a performance isn't "authorizing" that performance. The linker does not control what is or is not on the third-party site that streams the content. He has no ability to "authorize" anything.

    Besides, "authorizing" the performance only gives rise to contributory infringement, as the Congressional record makes clear: "Use of the phrase 'to authorize' is intended to avoid any questions as to the liability of contributory infringers."

    Since it's streaming, only the public performance right is implicated. I think we agree on that.

    We do. Here, I'd just like to point out that this is a criminal case, and infringing on the public performance right cannot be anything more than a misdemeanor - even if there are multiple offenses. No felonies could even possibly have been committed.

    That's assuming direct infringement on the public performance right. There is no "contributory infringement" in criminal law; there could only be "aiding and abetting" of the direct infringement. It's doubtful that merely providing a link would raise to the level of aiding and abetting, but even if it would, it would be aiding and abetting a misdemeanor at worst.

    Embedding a video to be streamed by others violates the public performance right. There is no doubt about that.

    Indeed, there is no doubt. There's no doubt that merely linking to infringing content absolutely is not a direct infringement of the "public performance" right. ("Embedding" a video, legally speaking, is simply providing a link.)

    The only question is whether it could be contributory infringement, or not any kind of infringement at all.

     

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

  49.  
    identicon
    comparateur mutuelle, Apr 11th, 2013 @ 3:31am

    J'ai apprécié visiter votre site qui est très instructif, J'attend avec impatience la suite. bonne continuation.

     

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This