by Mike Masnick
Thu, Jul 4th 2013 9:00am
by Tim Cushing
Tue, May 21st 2013 9:03am
If You're Going To Illegally Seize Citizens' Cell Phones, At Least Make Sure You're Grabbing The Right Ones
from the all-officers-involved-are-ordered-to-attend-'Remedial-Rights-Infringement dept
When cops behave badly, many suddenly develop an acute case of unconstitutional stage fright, often resulting in the immediate confiscation of any cameras/cell phones in the vicinity. If it's going to come down to "our word against yours," it helps immensely to have any contradictory "words" spirited away by Narrative Control, a branch of law enforcement that handles all cop "publicity rights," as well as providing new interpretations and reimaginings of existing statutes.
Sometimes it works. The offending footage vanishes into the ether, resulting in a narrative standoff between the Upstanding (if Overenthusiastic) Officer of the Law and the Obviously Crazy and Dangerous Person Who Should Really Be Doing a Little Hard Time.
Other times, the smash-and-grab fails, and the citizens retain their footage, providing a more rounded narration that often reverses the roles. (Upstanding [if Overenthusiastic] Citizen v. Obviously Crazy and Dangerous Law Enforcement Officer Who Really Shouldn't be Allowed to Abuse Anything Other Than a Demeaning Desk Job.)
Sometimes, though, the (attempted) confiscation of offending footage results in a surprising amount of schadenfreude. These moments occur altogether too infrequently, but when they do, a good time is had by all not attempting to confiscate damning footage.
First off, via Photography is not a Crime, comes the brief but surprisingly satisfying story of bullying tactics backfiring.
New York City police officers arrested a woman who was video recording them from a public sidewalk as they conducted some type of “vehicle safety checkpoint.”
The officers apparently stole a memory card from a camera, which turned out to be the wrong one, allowing us to view the video.
In the Youtube description, under the headline, “You stole the wrong SD card,” Christina Gonzalez said her boyfriend was also arrested.
"We were arrested while filming an NYPD checkpoint on a bridge between a soon to be gentrified Bronx and a quickly gentrifying Harlem. We were charged with OGA, DisCon, and resisting arrest. I was holding a bag of yarn in one hand and a canvas in the other. My partner had food in his hands when he was tackled. Even though their violent actions were unjust, we did not resist. Simultaneous with our “arrests”, the checkpoint was closed down.
We were held for 25 hours."
If you'll notice, both principals were charged with OGA (Obstructing Governmental Administration), in addition to the usual cop standbys, disorderly conduct and (of course) resisting arrest. The thing is, they weren't obstructing anything, at least not according to the NYPD's own Patrol Guide.
a. A person remaining in the vicinity of a stop or arrest shall not be subject to arrest for Obstructing Governmental Administration (Penal Law, Section 195.05) unless the officer has probable cause to believe the person or persons are obstructing governmental administration.Even if they were doing all of the above, it still wouldn't add up to OGA. So, that's a BS charge, as is the "resisting arrest," but the latter seems to be tacked on to any arrest that occurs without any real crime being committed. It's an offshoot of "contempt of cop, " which basically means that not immediately shutting up and doing what you're told is the same as resisting arrest.
b. None of the following constitutes probable cause for arrest or detention of an onlooker unless the safety of officers or other persons is directly endangered or the officer reasonably believes they are endangered or the law is otherwise violated:
(1) Speech alone, even though crude and vulgar
(2) Requesting and making notes of shield numbers or names of officers
(3) Taking photographs, videotapes or tape recordings
(4) Remaining in the vicinity of the stop or arrest
Among all the fake crimes, a real crime did take place -- an NYPD officer (allegedly) stole a memory card, most likely in hopes of "detaining" the offending footage permanently. But he grabbed the wrong one and now the actions of these officers is on public display and spreading around the web.
That's illegal seizure FAIL #1. The second story comes courtesy of a lawsuit filed against the Galveston (Texas) police department. It starts out ordinarily enough. (Sidebar: there's something horribly wrong with the system if I can state something is "ordinary" and have it contain the following events.)
Jarrett Anthony Neu sued Galveston in Federal Court.Someone should get rid of that "less-than-lethal" modifier attached to "Taser." It's been proven multiple times that it can be lethal, if deployed against a person with the "right" ailments or simply deployed repeatedly until the arrestee has sufficiently "stopped resisting." (In these cases, the word "resisting" is often interchangeable with the word "breathing.")
Neu claims that Galveston police arrested him at 4:45 p.m. on March 11, without a warrant, at a Galveston apartment complex. He claims they lied about it in the police report. He claims they subjected him not only to threats, intimidation, insult and humiliation, but severe and cruel physical abuse and punishment by both physical beating and the repeated unnecessary and unwarranted deployment of a less-than-lethal Taser weapon on plaintiff. Plaintiff, who suffers from a pre-existing cardiac ailment, suffered permanent and debilitating injuries as well as permanent disfigurement and scarring at the hands of these police officers.
At some point during this "exchange of viewpoints" (or whatever the correct PD terminology is), the police noticed an impartial observer was recording the whole thing for posterity. So, they made the usual move to responsibly collect all evidence, especially the damning kind.
During this police administered beating, officers realized that a citizen was filming the beating via cell phone and the officers involved without a legal reason seized (the wrong) cell phone.E for effort, guys. You almost had it. And without a warrant! Now, the Galveston PD has a cell phone, but the plaintiff's lawyer has the cell phone.
Counsel for plaintiff has the cell phone that recorded the beating.It would be nice to think the Galveston PD is kicking themselves for blowing a simple, illegal seizure of someone's phone, but if the plaintiff's story is anything to go by, they're probably kicking someone else.
by Mike Masnick
Fri, Nov 16th 2012 6:28pm
from the did-it-wear-a-mustache dept
"MegaUpload was served with a criminal search warrant for alleged third-party user conduct and was advised not to interfere with that criminal investigation or with the files -- as such disclosure, would jeopardize the ongoing investigation. To ask MegaUpload to cooperate and then use that cooperation against them, to us seems to be both unfair and misleading."Most of the argument in the warrants is just repeating the already questionable claims in the indictment -- which is what you'd expect. They're also not all that different from previous domain seizure requests -- with a few notable exceptions. First, you'll notice that the special agent who conducted the investigation has all personal information redacted. Apparently the Justice Department would prefer that its agent not receive the ridicule that the agent who made myriad mistakes in earlier domain seizures received.
But what was really amusing was the description of the investigation, which apparently involved an "undercover computer."
Using an undercover computer, [redacted] observed how a visitor may view content hosted on Megaupload.com. For example, on November 20, 2011, [redacted] observed the copyrighted picture "Zack and Miri Make a Porno," which was released in 2008 by The Weinstein Company, on the website Megavideo.com.I'm still trying to figure out just what an "undercover computer" is -- and where I can buy one. Also, seems kind of random to choose Zack and Miri as the sample file to download -- especially given the director/writer of that particular movie, Kevin Smith, has talked extensively about how he believes "piracy" actually helps him gain more fans. Yes, the film's copyright is held by The Weinstein Company -- whose owners appear to have a slightly less enlightened view of infringement -- but it still seems like an odd choice.
In addition to those oddities, there are some other claims within the filings that don't make much sense. They make the argument that seizure is necessary with claims that are, simply speaking, not true:
Neither a restraining order nor an injunction is sufficient to guarantee the availability of the Subject Domain Names for forfeiture. By seizing the Subject Domain Names and redirecting them to another website, the United States will prevent supporters of the Mega Conspiracy or third parties from redirecting the Subject Domain Names to servers elsewhere in the world, and thus using them to commit additional crimes. Furthermore, seizure of the Subject Domain Names will prevent visitors from continuing to access the websites located at the Subject Domain Names.To put it simply: that makes no sense. Either a restraining order or an injunction would, in fact, prevent those other things from happening. Yes, Megaupload could have ignored the two, but then it would face additional charges for ignoring the court. Given that Megaupload had repeatedly engaged in various lawsuits against it in the US before, there was simply no evidence that Megaupload would directly ignore the court and, as such, face additional charges.
Finally, the documents also show the DOJ's request for these documents to be sealed. You can understand why they wanted the warrants sealed prior to the takedowns and arrests happening. But those all took place within a week of the seizures being approved by the judge. There was no reason to keep them under seal. Yet the DOJ claims that it "has considered alternatives less drastic than sealing, including, for example, the possibility of redactions, and has determined that none would suffice to protect this investigation." That is, of course, empirically and definitively false because we've now seen the unsealed and redacted document and they do nothing to endanger the investigation (other than, perhaps, revealing the weaknesses of the DOJ's arguments).
by Mike Masnick
Tue, Oct 23rd 2012 3:10am
from the should-be-public-info dept
.... these materials will certainly assist him to learn what steps, if any, the government took to inform the court of the scope of its planned seizure and related execution of search warrants. They would also show any plan provided by the government or the court in the warrant materials for minimization to protect innocent users before the seizure or to segregate the data after seizure. Federal judges increasingly impose detailed conditions prior to execution of computer searches.... For example, Judge Kozinski in the Ninth Circuit has observed that if the government refuses to forswear the ability to retain or use data that should have been segregated initially, the judge “should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.” .... Unsealing will allow Mr. Goodwin, as well as the general public, to learn which, if any, such conditions were undertaken in this case.Separately, they note that there is tremendous public interest in revealing these details, and criminal cases should be done as publicly as possible. And, considering how frequently the US government is now seizing websites, the issue is of tremendous importance:
Similarly, under the Fourth Amendment people have a right to be secure in their “papers” and “effects” against unreasonable searches and seizures. A person's “effects” may be the subject of Fourth Amendment protection even where there is no particular privacy or liberty interest.... A property seizure occurs when a governmental intrusion meaningfully interferes with an individual's possessory interest.... The Fourth Amendment analysis, in turn, requires the Court to determine whether the seizure was “reasonable.” Gaining access to the materials that served as a basis for the government’s seizure of his property can assist Mr. Goodwin and other innocent Megaupload users in determining whether the seizure was unreasonable.
The public also has a strong interest in understanding the government process in executing search warrants on cloud computing servers that contain innocent third-party property. Seizures of domain names, and resulting searches of related servers, are tools the government is using with increasing frequency in criminal copyright enforcement actions. For example, the federal government has reportedly seized more than 800 websites so far under its Operation in our Sites campaign. The government has issued press releases and otherwise sought to publicize its efforts, obviously giving its own perspective on its actions. Legislators, the media, and the public are vigorously debating the very issue of these domain name seizures and related searches, even as a large percentage of Americans continue to use cloud computing services. Access to judicial records would ensure a more accurate and informed public debate, rather than one informed merely by the government’s press releasesFinally, they note that the government has already said it has no more need for the servers in question, so why would it make sense to keep the seizure warrant sealed? It seems difficult to argue with any of these points... but I have a feeling that the US Attorneys are about to try to do exactly that...
by Tim Cushing
Tue, Aug 7th 2012 5:46am
Gibson Guitars CEO Calls Out The Government For 'Regulating Business Through Criminal Law' [Updated]
from the violating-obscure-statutes?-that's-a-paddlin' dept
It's been close to a year since the Justice Department raided Gibson Guitars for using "illegal wood" on the fingerboards. You'd think something like "illegal wood" wouldn't require the use of the term "raid," or the services of 30 agents with guns and bulletproof vests, but hey, welcome to America. The raid was authorized under the Lacey Act, an act whose original use was to curb poaching of illegal species, but soon spread (as these things do) to cover the importing other wildlife and plants.
The fun thing about the law is that staying in compliance requires knowing not only the particular details of over 200 other countries' laws, but also a bit of mind-reading in order to suss out how the federal government will interpret each one of these laws. Put it all together and you've got Gibson's situation, which is detailed in a post for the Wall Street Journal (gated) but also helpfully detailed at Cato's new National Police Misconduct Reporting Project. The first indication that this raid was a complete abortion of justice is the fact that the wood Gibson used had made it into the country without being seized:
The fingerboards of our guitars are made with wood that is imported from India. The wood seized during the Aug. 24 raid, however, was from a Forest Stewardship Council-certified supplier, meaning the wood complies with FSC's rules requiring that it be harvested legally and in compliance with traditional and civil rights, among other protections. Indian authorities have provided sworn statements approving the shipment, and U.S. Custom allowed the shipment to pass through America's border and to our factories.Having made it through the safeguards that were set up to stop illegal imports, one would think that the material was cleared for use. But this sort of clear thinking fails to take into account that every law is somehow still open to multiple interpretations:
Nonetheless, the U.S. Fish and Wildlife Service decided to enforce its own interpretation of Indian law, arguing that because the fingerboards weren't finished in India, they were illegal exports. In effect, the agency is arguing that to be in compliance with the law, Gibson must outsource the jobs of finishing craftsmen in Tennessee.Seizure laws are incredibly popular with everyone from large government agencies to small town police departments and having 4,000 federal criminal offenses on the books makes it very simple for law enforcers to find inadvertent or unwitting criminals and inflict damage on them through seizures and imprisonment. Any avenue that looks as if it may provide agencies like this with more power and control is generally explored to its fullest.
This is an overreach of government authority and indicative of the kinds of burdens the federal government routinely imposes on growing businesses. It also highlights a dangerous trend: an attempt to punish even paperwork errors with criminal charges and to regulate business activities through criminal law. Policy wonks call this “overcriminalization.” I call it a job killer.
Many business owners have inadvertently broken obscure and highly technical foreign laws, landing them in prison for things like importing lobster tails in plastic rather than cardboard packaging (the violation of that Honduran law earned one man an eight-year prison sentence). Cases like this make it clear that the justice system has strayed from its constitutional purpose like stopping the real bad guys from bringing harm.That is exactly where the system is now. Criminal intent is no longer factored in to the equation. The old chestnut, "Ignorance of the law is no excuse," is actually a completely valid excuse. 4,000 federal criminal offenses on the books means that heavier sentences and fines are levied against criminals who in the past would have been subject to less harsh civil and/or local judgments. Add to that 40,000 new state laws introduced in 2012 alone, and you've got the perfect recipe for government overreach and thousands of chances to be hauled into court to attempt to prove a negative.
Cato's Tim Lynch pointed out the absurdity of the current situation during an address to the House Subcommittee on Crime, Terrorism and Homeland Security:
The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that "ignorance of the law is no excuse." That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. As Professor Henry M. Hart opined, "In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact."Gibson Guitars had every reason to presume the wood it was using was perfectly legal. The company had taken great care to stay within the confines of the laws as it understood them. Instead of being given the benefit of a doubt when the issue of legality arose (and after the wood had already cleared Customs), the company was raided as though it were cranking out black market explosives rather than ordinary, harmless guitars. Gibson always has the option to sue but the odds of getting this case to be heard, much less winning it, are low. Even with higher odds, the time and expense would far outweigh the losses sustained by Gibson at the hand of the federal government.
It is absurd and unjust for the government to impose a legal duty on every citizen to "know" all of the mind-boggling rules and regulations that have been promulgated over the years. Policymakers can and should discard the "ignorance-is-no-excuse" maxim by enacting a law that would require prosecutors to prove that regulatory violations are "willful" or, in the alternative, that would permit a good-faith belief in the legality of one's conduct to be pleaded and proved as a defense. The former rule is already in place for our complicated tax laws — but it should also shield unwary Americans from all of the laws and regulations as well.
This leaves companies like Gibson in the unenviable position of putting even more time and money into compliance, rather than innovation, expansion or outside investments. In today's economy, the private sector really can't afford another "job killer," especially one they have to pay for out of their own pockets.
by Mike Masnick
Tue, Jun 12th 2012 10:03am
from the hey,-not-our-machines... dept
As we've noted, there's been a lot of finger pointing going on here, with a bunch of highly questionable actions on the part of the government, including its repeated suggestion that all of this data -- which, remember, they seemed to think was evidence of a crime -- should simply be deleted. But what's so sneaky and duplicitous about the DOJ's argument here? They're saying that because they never actually seized the servers in question, this has absolutely nothing to do with them -- and that Goodwin would be better off suing Megaupload or Carpathia (the hosting company) or simply paying Carpathia to access the servers. Basically, it says that no one's stopping him... other than the fact that all the servers are offline thanks to the feds' own actions (but, please, they'd prefer you not remember that part). They actually seem to feign surprise that their own actions of seizing Megaupload's domains and all of the company's (and its exec team's) money, and arresting the entire senior management team... might lead to the site being shut down entirely.
Basically, it's as if the government walked into a china shop, smashed up every last piece, and then walked out. When the owner then sought restitution from the government, the government suddenly insists that since it didn't take any of the broken pieces out of the shop, there's no cause for action against the government. And all the smashed up little pieces are still there, so why would anyone complain?
Oh, and just to add totally obnoxious insult to injury, the DOJ also says that even if the court decides that there's some merit in the arguments laid out by Goodwin, even that doesn't matter, because it'll just cop out and declare "sovereign immunity" and avoid having to pay out. The whole thing is a fairly disgusting display by the DOJ showing just how far it will go to lock someone up once it's determined to. They will cause all sorts of collateral damage, and when someone calls them on it, they'll just point the finger elsewhere... all while demanding even more power to censor with impunity.
by Mike Masnick
Fri, Jun 8th 2012 6:34pm
from the answers-were-not-satisfactory dept
Turns out he never responded to her questions.
Of course, since then the secret proceedings in the case (which Dajaz1 was not even allowed to know about, or even have their lawyer speak to the judge) have been unsealed. Those revealed that the ICE Agent in charge of the case, Andrew Reynolds, had basically sat around doing nothing for over a year, waiting for the RIAA to finally provide the evidence that Dajaz1 had broken the law. That evidence was obviously never produced, which is why Dajaz1 eventually got its domain back.
There was another oversight hearing yesterday, and Zoe Lofgren quizzed Holder again, noting that not only did he not respond to her questions, but also highlighting the unsealed documents, which show that the original affidavit was misleading.
Holder first responds that he "believes" the seizures were legal, because the court signed off on them. Lofgren immediately challenges that, noting the incorrect or misleading information in the affidavit, and asking if he believes it's okay to censor a site for over a year and not allow the site to even be heard by the court in all that time. At that point, he at least admits that if the affidavit was "misleading" that "that would not be an appropriate basis for action on behalf of the government." He also notes that seizure is a powerful tool that needs to be used "judiciously." And then notes that if what Lofgren descrbied was accurate "that would be of great concern."
Of course, none of that comments on what actually happened here -- and it's not like this is the first time he's heard of this. Remember, he was directly asked about it last year, and had promised to look into the details. Furthermore, after the hearing, Lofgren put out a statement saying that not only did she not hear back from him after her questions last year, but "prior to this hearing my staff told his staff to tell him the question I was going to be asking so he could be prepared to answer." Clearly, he was not prepared to answer.
As Lofgren notes, "I didn't think it was a very impressive answer, and to suppress free speech for a year with secret proceedings and no probable cause is a problem. It's not the way America is supposed to be."
by Mike Masnick
Thu, May 31st 2012 7:05am
from the and-off-we-go dept
The Federal Rules of Criminal Procedure prescribe specific requirements for serving a summons on a corporate defendant in a criminal case. These requirements are neither vague nor optional – they quite explicitly require both service upon an agent of the corporation and a mailing to the corporation’s last known address within the United States. The Federal Rules do not contemplate service of a criminal summons on a wholly foreign corporation without an agent or offices in the United States. Wholly foreign corporations, therefore, may not be prosecuted for alleged violations of federal criminal law unless they waive service. In short, a corporation such as Megaupload cannot be brought within the jurisdiction of this Court for criminal proceedings absent its consent.That is, however, separate from the cases against the individuals involved in Megaupload. However, as Megaupload's lawyer is suggesting if the case is dropped against the corporate entity, it may require dismissing the orders freezing the firms' assets.
The second filing (pdf) doesn't get the same headlines, since it's not asking for complete dismissal, but in many ways it's the more interesting filing. That filing is an effort to get seized assets back in order to pay for their defense. But it also foreshadows the rather key issue in the case, which we've raised in the past about both this case and the Rojadirecta case: the US government is flat out making up a concept that inducement to infringe violates criminal copyright law.
To be clear, under the Grokster decision, the US Supreme Court made up a concept known as "inducement" as violating copyright law. Such "inducement" is not found anywhere in the copyright statute. To do so, the court relied on principles found in civil law, not criminal law. Criminal law -- for hopefully obvious reasons -- has very different standards, and "inducement" is certainly not possible under criminal copyright law as it's written today. There is, of course, the concept of "aiding and abetting" within criminal laws, but there are clear limits in which that can be used -- and the US government completely fails to show all the necessary elements for aiding and abetting (in part because it tries to mix and match the actions of Megaupload users with the defendants -- but you can't do that). That is, while users may have willfully infringed (one prong of criminal copyright infringement), the government needs to show that the defendants themselves were involved in direct willful infringement. Instead, the government assumes that if users were willful, but the defendants were not, it can simply use some sort of made up legal transitive property to pretend that they can hang the willful infringement on the defendants.
What's amazing is that all of these issues were clearly raised in the Rojadirecta case, but as has been clear from the filings in that case, the Department of Justice still doesn't understand how it's mixing and matching the law here... so it just went ahead and did the exact same thing in the Megaupload case. Perhaps it realizes that it's making up a legal concept and just hoping that judges accept such things (which judges aren't supposed to do in criminal cases, since such common law rulings by a judge can only apply to civil law), or perhaps the Justice Department attorneys really don't understand the law. It honestly feels like it may be the latter.
Federal crimes are delimited by statute. It is for Congress, not for the courts, to say (and to warn) what constitutes a crime. Dowling, 473 U.S. at 213-14 (quoting United States v. Wilberger, 5 Wheat. 76 (1820) (“It is the legislature, not the Court, which is to define a crime, and ordain its punishment”)). Courts interpreting penal statutes will exercise restraint and adopt a narrow statutory interpretation unless Congress has definitely indicated that it intended a harsher reading. Id. Because “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another,” Sony Corp. of Am. v. Universal Studios, 464 U.S. 417, 434 (1984), reh’g denied, 456 U.S. 1112 (1984), the Act cannot be read to make secondary infringement a crime.The filing also highlights, repeatedly, that the indictment fails to actually establish the basic facts necessary to bring the charges that are being brought:
These omissions are not small, they are not subtle, they are not few, and they are not inconsequential. The Government has attempted to make out an all-encompassing case of an alleged criminal copyright conspiracy without bothering to allege concrete specifics of the actual infringement allegedly committed. It has attempted to build one of “the largest criminal copyright cases ever brought by the United States” out of conclusory ipse dixit, reciting statutory verbiage and nothing more. Certainly Counts Four through Eight do not reflect facts supplying requisite probable cause.Separately, the filing points out that the government's claims presume that every dollar earned by Megaupload was earned because of criminal activity. That, of course, is ridiculous for a number of reasons, not the least of which is that we know that there were a significant number of legitimate users and uses of Megaupload. Furthermore, the filing correctly points out that you can only use US copyright law against infringing acts that occurred inside the US, and yet the government assumes that every act of infringement is subject to US copyright law -- which is simply false -- and has resulted in much more straightforward cases being dismissed.
The Government seeks forfeiture of all of Defendants’ revenue because it has assumed all of the revenue is tainted by crime. But there is no probable cause to support that assumption, which by no means follows from—and is, indeed, at odds with—acknowledged aspects of Megaupload’s business that stand well removed from the alleged infringement. To put matters in perspective, consider the maximum statutory fine that might be imposed upon Megaupload and the individual Defendants were they convicted on all five criminal counts, Counts Four through Eight, concerning the alleged copyright infringement: The maximum fine per count for a first offense of criminal copyright infringement under 21 U.S.C. § 506(a) would be $250,000 for the individual and $500,000 for the corporation, see 18 U.S.C. §§ 2319(b), 3571(b)(3), 3571(c)(3), such that imposing the fine upon these Defendants consecutively across all five counts would result in a combined fine of $7,500,000.00. Yet tens of millions of dollars, more than ten times the amount of that maximum fine, have been seized from these Defendants as derived from the business. The math does not compute.The filing also points out that Megaupload has substantial non-infringing uses, effectively using the Betamax ruling as a defense. I'm not sure this actually applies in the criminal context, but does raise some reasonable questions about whether or not you could even make a legitimate civil case against Megaupload.
Finally, the filing notes the basic First Amendment questions raised by the seizure itself, citing the Fort Wayne Books case:
The Government’s shuttering of Megaupload, purely on its own ipse dixit, is a modernday throwback to the unconstitutional prior restraints on speech that are a notorious enemy of the First Amendment. In Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), for instance, the State of Indiana filed a civil action against several owners of adult bookstores alleging RICO violations and, based on an ex parte showing of probable cause, seized “the real estate, publications, and other personal property comprising each of the three bookstores operated by the corporate defendants.” Id. at 51. Even assuming that the seized materials were obscene, and thus unprotected, the Court held that “our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.” Id. at 66; see United States v. Jenkins, 974 F.2d 32, 35 (5th Cir. 1992) (“It is, of course, well-settled that the government may not seize presumptively protected expressive materials without a prior judicial determination of obscenity”). The bottom line is that the Government cannot order seizure of “literally thousands of books and films [to be] carried away and taken out of circulation by [a] pretrial order” until “the claimed justification for seizing books or other publications is properly established in an adversary proceeding.” Fort Wayne Books, 489 U.S. at 67; see, e.g., Multi-Media Distributing Co., Inc. v. United States, 836 F. Supp. 606, 614 (N.D. Ind. 1993)...I'm sure we'll see these arguments show up again in a motion to dismiss, but for now, they're just being raised in an effort to get access to some of the seized funds. Either way, the further this case moves forward, the worse it looks for the feds case, which increasingly looks insanely weak (and highlights just how ridiculously over-aggressive the US government has been in pursuing the case).
Here, the Government has effectively accomplished what Fort Wayne Books foreclosed. It has shuttered Megaupload, and, with it, a treasure trove of books, films, videos, photos, digital expression of every stripe, without any adversarial proceeding at all. What is more, if the Government had its way, 1,100-servers worth of that collection would have been wiped, with members of the public (including rightful owners of that material) left the poorer for it. In this sense, what the Government has done in this case raises further alarms, for it has seized not only allegedly infringing copies, but effectively taken down everything that was on Megaupload.com, taking works out of circulation entirely. See Heller v. New York, 413 U.S. 483, 492 (1973) (explaining that “a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause” but it is when a book or film is “taken out of circulation completely” that the seizure rises to the level of a prior restraint). The parallels between this case and cases in which prior restraints have been denounced as unconstitutional are unsettling and, if nothing else, warrant heightened judicial skepticism and scrutiny
by Mike Masnick
Mon, May 21st 2012 12:14pm
Techdirt Threatened With Defamation Suit Over Story On Feds Getting Royalty In Movie From Mexican Drug Cartel Money Launderer
from the the-sequel dept
In case you missed the original story, it involved a guy by the name of Jorge Vazquez Sanchez, who everyone seems to admit was somehow connected to a Mexican drug cartel. The government specifically charged him with money laundering and extortion. Reporters covering the story, including Guillermo Contreras and Jason Buch at the San Antonio Express-News, refer to Vazquez as a "drug trafficker."
Either way, the extortion claim came from the way he took ownership of a screenplay for Mary, Mother of Christ, which was written by Benedict Fitzgerald, who also wrote the screenplay for Passion.... Fitzgerald, at some point, took out and then defaulted on a business loan for $340,000 with Macri Inc. Because of this, the owner of Macri Inc., Arturo Madrigal, took possession of the screenplay. Some time after this, apparently Vazquez had Madrigal's brother kidnapped in Mexico, and demanded the rights to the screenplay in exchange for his release. Madrigal signed over the rights to the screenplay to Vazquez. Vazquez apparently then was able to sell the screenplay to Proud Mary Entertainment, which was later renamed Aloe Entertainment, in exchange for $1 million (less some fees) and a 10% royalty rate on any profits from the movie. After Vazquez did a plea deal in which he plead guilty and handed over that 10% royalty to the US government, Madrigal hit Vazquez with a separate lawsuit, seeking to regain control of the screenplay that Vazquez had obtained through these questionable means.
As far as we can tell all of the above are undisputed facts. It's what has been reported by others. It's what's in the legal documents. And it's what we reported. Our report focused almost entirely on the oddity of the US government ending up with a 10% royalty interest in a Hollywood movie.
And yet... we received a very threatening email claiming that our post was defamatory. The full email (complete with a series of typos, though minus the odd line breaks) is posted below. The lawyer who sent it claims to represent the producers of the film who purchased the screenplay from Vazquez. This may mean Aloe Entertainment, though the email never names the client. Oddly, the email, while insisting that our post was defamatory, more or less repeats the identical facts as we described them in the original post, and which we are reiterating here. The email does appear to raise two issues:
- Our original post referred to Vazquez as a "drug smuggler." This was based on the San Antonio Express-News report that refers to him as a "drug trafficker." Perhaps there is a difference between one and the other, but it does not seem to be one of significance. Either way, the threat email was quite upset that we did not specify that he was merely "acting as a money launderer for a Mexican drug cartel." I will admit that I do not see how this makes a major difference one way or another, but in the interest of accuracy in reporting, we have changed our original reference from "Mexican drug smuggler" to now say "money launderer for a Mexican drug cartel" -- which is how both the federal prosecutors and the lawyer sending the email appear to describe him. Considering that the lawyer claims to represent the production company, however, I still am at a loss as to how this matters. I do not believe our original statement in any way defamed the production company. It was a mere use of a synonym for the original report. But that should only concern Vazquez. It makes no mention of Aloe Entertainment nor any statement about that company.
- The threat email says that the headline of our post "implies that the film has drug money in it" and suggests that "the film or its production has drug ties." Except we never said that. We did not state it. We did not imply it. We said nothing of the sort. We explained the same chain of events that we explained above, which noted that the production house bought the screenplay from Vazquez. Nowhere did we suggest that drug money went the other way. So, we were left somewhat baffled by the threat.
by Mike Masnick
Wed, May 16th 2012 10:22am
from the that-makes-no-sense dept
Last December (actually the same day that the government was handing back the Dajaz1 domain in a similar dispute), the lower court dismissed the forfeiture claim -- saying that the government failed to plead willful copyright infringement, which is necessary to show criminal copyright infringement. However, it allowed the government to refile, which it did. The two sides have filed their latest motions in the case, and once again, it appears that they're talking about two totally different things. In fact, reading through the government's filing, it appears that they either have no understanding of the law itself, or have twisted themselves into such a tight knot, that they're not sure how to get out of it.
The details are a bit tedious, but let's see if we can break it out. First off, the seizure and forfeiture are "in rem" -- meaning that the case is against the domains themselves, and not the owners of the domains. That can be an awkward distinction, obviously, but the government makes it much, much more awkward in that it seems to shift its argument back and forth constantly. For example, it repeatedly (in a rather mocking tone) rejects the arguments of Puerto 80 by noting that no one is accusing Puerto 80 of anything. The case is merely about how the Rojadirecta domains "facilitate" criminal copyright infringement. So the government argues that the court should ignore the (rather compelling) defenses for why Puerto 80 did not violate criminal copyright law.
Now, that part is fine... but where it gets weird is that the government immediately then tries to use Puerto 80s actions as proof of facilitating infringement. If you're playing along with the home game, the government is arguing both that Puerto 80s actions are meaningless to the case and that Puerto 80's actions are the key to facilitating criminal copyright infringement. Basically, whenever Puerto 80 points out that its actions do not meet the standard of criminal copyright infringement, the government waves its hands and says "doesn't matter, we're not charging you, just the URL." But then to prove that the URL "facilitated" the actions, it cites Puerto 80's actions, rather than the URL's actions. That's because the URL doesn't act. It's just a URL. See the following as an example:
Additionally, there can be no serious argument that the Government has alleged that the Rojadirecta Domain Names' facilitation of the underlying copyright offense was anything but substantial. See Amended Complaint... ("At all relevant times, the links displayed on the main homepage of the Rojadirecta Website were purposefully aggregated and organized by the owner(s) and/or operator(s) of the Rojadirecta Website. Moreover, more than half of the material available on the Rojadirecta Website at any given time during law enforcement's investigation appeared to be dedicated to making infringing content available to users of the Rojadirecta Website.")....See that? First it's "here's all the evidence of things done by Puerto 80"... and then immediately, "Puerto 80's actions are irrelevant".
Puerto 80's arguments about its own conduct are irrelevant and misapprehend the nature of the inquiry
At times this reaches absolutely absurd levels, such as the part of the government's filing in which they assert that the domain itself had knowledge of infringement. The feds can't say Puerto 80 had knowledge, since (again) they admit that Puerto 80 is not being charged. So they switch and anthropomorphize the domain itself:
Indeed, the Rojadirecta Domain Names were repeatedly noticed that they were linking to copyright infringing content.You see? It's not Puerto 80 who was noticed, but the domain name itself. It must have "known." Or something.
The government's argument gets even worse from there, because nowhere does it show where the criminal copyright infringement happened. In order for the government to claim that the Rojadirecta domains facilitated criminal copyright infringement, you would think the first step would have to be to show where it actually happened. Here, the government basically waves its hand and says, "of course it happened." First, it highlights the fact that because of links on the Rojadirecta sites, content could be streamed from third party sites. In fact, it straight out admits that Rojadirecta hosted no infringing content, but rather it was all on these other sites. It then notes that such streams likely violated the performance and reproductions rights under the Copyright Act. That may be true, but that, alone, does not make it a criminal offense. That requires willfulness -- which was the problem in the original filing.
But, here again, the feds run into a serious problem: how can they show willfulness on the part of the infringer when they never identify an infringer? The entire filing insists that the domains should be forfeited because they were used to facilitate a crime, but they never show that any crime was actually committed, because they never even attempt to identify who committed the crime. They admit that it's not Puerto 80 (even as they try to use Puerto 80's actions). It likely isn't the users of Rojadirecta (and the government doesn't even try to make that claim). Instead, it seems to hint at an imaginary party who willfully infringed, but is never actually identified! It's really amazing.
The implications here are staggering. Basically, the feds are arguing that they can seize and then forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process -- but they never have to actually prove anyone violated the specific law. In other words, if the government wanted to, under this definition, it could easily seize and forfeit any search engine domain or any website that allows public comments, merely by asserting that a link in a search result or a link in a comment led to infringing material. That's an insane interpretation of the law -- yet it appears to be the one that the feds are asserting.
One hopes that the judge actually understands the absolutely insanity of the feds' argument here. Puerto 80's lawyers lay it out nicely (pdf) in their response, but courts can be funny sometimes -- especially in copyright cases. Still, the argument made by Puerto 80's lawyers lay out just how ridiculous this interpretation would be:
Under the government’s construction of [the law], every domain name that pointed to a website containing links to infringing copies would “facilitate” and have a “substantial connection” to the offense of criminal copyright infringement, and would therefore be subject to forfeiture. The broad construction of the term “facilitation” the government seeks would give it the power to shut down google.com, yahoo.com, bing.com, or any of an array of other channels of communication that—like every site on the Internet—link to content provided by third parties that might or might not be infringing. The property in question is two domain names, which (in the government’s words) are merely “labels” that “resolve” to websites, and are distinct from the servers that host the website or any content of it....Of course, all of this doesn't even touch on two other important issues in the case. One is the First Amendment questions raised by seizing a domain and the second is the fact that US copyright law only matters in the US, not in Spain. In both cases, the government again comes back with wacky responses. On the First Amendment claim, it argues there's no First Amendment issue, relying incorrectly on the Arcara vs. Cloud Books case. But that ruling is clear that it only applies if the crime in question is not expressive. But copyright infringement is often absolutely expressive. It may not be protected expression but it is expression, and as such it requires First Amendment scrutiny to make that determination. The government flat out claims that copyright infringement (which it falsely calls "intellectual property theft") is "unrelated to speech." That's simply incorrect. Courts have long established that there is a balance between copyright and the First Amendment, and you can only establish infringement following a ruling by a court. Yet here the government wants to skip over that step entirely. As Puerto80 notes:
The government’s theory would have allowed it to seize the New York Times issue that published the Pentagon Papers and destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of national security laws. And the Times would have had no opportunity to show that its speech was lawful. There is no reason to think Congress intended the forfeiture statute to extend so broadly. And even if it had, Congress lacks the power to confer such plenary control over speech on government agents acting without judicial sanction.
The government argues that the links on the Rojadirecta website are not protected speech because they constitute copyright infringement. But that argument exactly misses the point of the prior restraint doctrine. Unless and until there has been a final determination on the merits after an adversary hearing, there is no basis to find that criminal copyright infringement occurred on the third party sites to which the Rojadirecta website linked.As for US law being applied outside the US, here the government just tries to wave this issue off again. It first admits that US law does not apply outside its borders, but then insists that it is "inconceivable" that some infringement didn't happen inside the US. But that's not how the law works. You have to actually show the infringement. You can't just insist that it happened somewhere in the US and move on...
The further this case goes, the worse and worse the government's arguments seem to get, and the less and less it seems to understand about the hole it has dug for itself.