While some have believed that ACTA is already dead in Europe, there are still actual votes to be held, and there have been significant concerns that political trickery might lead to ACTA actually being approved. The first three key votes (from three specific committees) happened today, and while it was close, all three came out with recommendations to reject ACTA. As Rick Falkvinge points out, one telling point is if you look at the votes on the Committee on Legal Affairs (Juri) and the Committee on Industry, Research and Energy (ITRE). The winning proposal for ITRE was drafted by Pirate Party MEP (and occasional Techdirt contributor) Amelia Andersdotter. The losing proposal for Juri was written by Marielle Gallo -- author of the infamous Gallo Report a few years ago, pushing the EU Parliament to support massively draconian IP enforcement rules. In other words, "the pirate" vs. "the copyright maximalist" in an EU Parlimantary committee votes... and the pirate won. Not too long ago, such a result would be unthinkable. However, it shows how quickly things can shift when you have reality on your side...

We've been following the Humble Bundle for a while, both because it's an interesting business model experiment and because the games are awesome. For the uninitiated: the Humble Bundle is a pay-what-you-want package of cross-platform, DRM-free indie games that gets re-issued regularly with a new selection of games plus a bunch of extras like soundtracks and concept art. Each package is available for a limited time, and the proceeds are split between the developers, selected charities and the people who organize the Bundles. They have pulled some impressive revenue numbers in the past, and the most recent bundle has yet again broken records, raising $1-million in the first five hours.

In some ways, the Humble Bundle is a "give it away and pray" approach, and not necessarily a model for the entire industry—but it also serves as a fantastic example of how to connect with fans and encourage them to spend money. Firstly, all games included in Humble Bundles are DRM-free and available for Windows, MacOS and Linux. Secondly, they put a lot of emphasis on the fact that your money is going straight to the developers and the charities—and they give you precise control over exactly how it is divided up. Thirdly, they offer added reasons to spend more than the minimum one cent: for $1 dollar you get a key to unlock the game on Steam, and there is usually a bonus game or two (or more) that is only available if you pay more than the average contribution (which of course also serves to keep pushing the average contribution up). That feeds into another great tactic: they reveal a bunch of live-updated stats about the Bundle as it sells, including sales and average contribution breakdowns by OS (notably, Linux users always have the highest average) and a leaderboard of top contributors. The leaderboard has regulars, too, like Minecraft developer notch, and the "HumbleBrony Bundle" (a group that does a collective fundraising effort within the Brony community), both of whom contribute to the tune of thousands.

All of this clearly works well to encourage participation and support, as the ever-growing numbers confirm. The current Bundle still has nearly two full weeks to go, and with such a huge rush in the first day, it's sure to be the biggest one ever.

Some folks are out to actively dismantle (or disrupt) the existing education system, and the revolution in public education has only just started. Educational software is getting a lot of buzz for being able to motivate students and more accurately track their progress -- and for its potential to be incredibly cost effective (if everything works perfectly). Here are just a few examples of educational developments aimed at kids these days.

• Educational apps are on every platform, but should parents really expect to pay more than couple bucks for a kid's app? Parents should also remember to make sure their kids can't rack up huge bills from in-app purchases. [url]
• Experience points instead of grades sounds like an interesting idea, but a 4.0 grading scale is a much more established system -- and it's a bit more standardized. Prof Sheldon notes, "There will always be a portion of the class who will not be motivated to learn no matter what an instructor may try..." [url]
• Can every class be taught as a video game? There are a bunch of startups like DimensionU that are going to find out soon enough. [url]
• To discover more interesting education-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Well, well. A few weeks ago, the jury in the Google/Oracle lawsuit ruled that Google infringed on a very small amount of Java API, but as we noted it was still an open question (and one for the judge to rule on) whether or not APIs were even eligible to be covered by copyright. In the second phase of the case, the jury completely rejected the idea that Google had infringed on Oracle's patents. So all that left was the 37 APIs. And that tiny "win" for Oracle is now gone as well, as the judge has ruled that those particular APIs are not covered by copyright:

So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality — even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law.

It is true that the very same functionality could have been offered in Android without duplicating the exact command structure used in Java. This could have been done by re-arranging the various methods under different groupings among the various classes and packages (even if the same names had been used). In this sense, there were many ways to group the methods yet still duplicate the same range of functionality.

But the names are more than just names — they are symbols in a command structure wherein the commands take the form java.package.Class.method() Each command calls into action a pre-assigned function. The overall name tree, of course, has creative elements but it is also a precise command structure — a utilitarian and functional set of symbols, each to carry out a pre-assigned function. This command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted. Duplication of the command structure is necessary for interoperability.

As some have pointed out the ruling is somewhat narrowly focused just on these 37 APIs, but the principles involved in why those 37 APIs are not copyrightable certainly will apply to plenty of other APIs as well. The ruling itself (embedded below) is pretty thorough and detailed. We had noted earlier that Judge Alsup had admitted that he'd learned to code Java in order to better understand the case (and that he'd had a history of knowing other coding languages as well) -- and it shows. Rather than using braindead broad analogies that don't make much sense, as we see all too often in court rulings, Alsup gets to the heart of the matter and clearly understands what an API is and how it works. His ruling is actually a decent primer on some parts of code for those who have never coded.

From that, Alsup points out just how ridiculous this entire case has been -- and specifically notes that he's explaining the level of ridiculousness of Oracle's position for the benefit of the appeals court who will surely hear this case once Oracle appeals (and which almost certainly will be staffed with judges not nearly as clued-in as Judge Alsup).

Oracle has made much of nine lines of code that crept into both Android and Java. This circumstance is so innocuous and overblown by Oracle that the actual facts, as found herein by the judge, will be set forth below for the benefit of the court of appeals.

He goes on to explain not just how insignificant the situation was, but he details how it happened and why it's crazy to consider it worthy of a copyright infringement suit. It's a pretty complete smackdown of Oracle's position.

Again, it is quite likely that Oracle will appeal, even though this ruling is so firm it might be smarter for Oracle to issue a giant apology to the tech community and just get on with doing business. That seems unlikely, of course, as Oracle probably hopes to find less knowledgeable judges on appeal. One hopes, however, that the appeals court judges will recognize the very, very thorough nature of Judge Alsup's ruling, and reject any appeal as well.

We've been covering for a while now how the FBI keep setting up and stopping its own terrorist plots in order to make headlines. A few weeks ago, the NY Times wrote about this and now Rolling Stone has its own entry on the subject, which goes one step further, noting that while the FBI keeps turning hapless nobodies into terrorists to arrest and splash all over the front pages, it seems to be ignoring groups that actually represent real threats, because they just don't make nearly as interesting a story. Rather, as the article notes, the FBI seems focused on "ideological enemies" to take down, rather than those who are most likely to actually cause harm:

The contrasts are extraordinarily instructive. When federal law enforcement agencies take an affirmative role in staging the crimes, the U.S. Justice Department then prosecutes, leaving more clear-and-present dangers relatively unbothered, the State is singling out ideological enemies. Violent white supremacists are not one of these enemies, apparently – because, as David Neiwert, probably the nation’s top journalist on the subject, told me, the federal government has much less often sought to entrap them, even though they are actually the biggest home-grown terrorism threat. That is unconstitutional, because law enforcement’s criterion for attention has been revealed as the ideas the alleged plotters hold – not their observed violent potential.

At some point, you have to wonder how much longer the FBI will be allowed to keep staging bogus threats just so they can arrest people, while mostly ignoring people who are actually trying to pull off violent attacks within the country.

The story of Lodsys is, by now, quite an infamous one in smartphone app development circles. The "company" (and I use that term loosely) owns a few patents, which it basically claims covers any iPhone app that involves in-app payments:

• 5,999,908: Customer-based product design module
• 7,133,834: Product value information interchange server
• 7,222,078: Methods and systems for gathering information from units of a commodity across a network
• 7,620,565: Customer-based product design module

This is despite the fact that Apple offers in-app payments as a feature of its platform, and Apple, in fact, holds a license to the patent in question. Of course, Lodsys and its supporters argue that Apple's "license" only applies to Apple and that it's proof that the patent is valid. That's not accurate however. The patents Lodsys holds were spun out of Intellectual Ventures, so it's most likely that Apple's "license" to them comes from the fact that it's one of the many large tech companies who have paid off IV to be protected from such patents. Apple has said that it will defend iPhone developers in court if they take on Lodsys, but it's still an expensive proposition, and even some of the most principled app developers are realizing that it's cheaper to settle than to fight.

This is, of course, exactly what Lodsys (and many other patent trolls) rely on. The patent system today is such that if you get sued, you're almost guaranteed to have to spend at least $1 million defending yourself in court. This is not fair. This is not reasonable. But it's a key element in our broken system, and the trolls exploit it as much as they possibly can.

Thankfully, some companies are trying to fight back. Despite Apple's promises to fight on behalf of its developers, Lodsys continues to both threaten and sue, including going after some big companies, like Dell, Rosetta Stone and Overstock. Of course, one reason why Lodsys wants to keep going is that at least one of its patents expires in a few months -- and it probably wants to squeeze as much out of it as possible. As the article linked here by Jeff Roberts highlights, a Seattle app developer, A Thinking Ape, has decided to jump ahead of the line by filing for a declaratory judgment against Lodsys. Lodsys's initial threat letter and A Thinking Ape's filing are embedded below. The filing includes details of many other declaratory judgment filings against Lodsys and argues that the patents are both invalid and that A Thinking Ape doesn't infringe them anyway. It certainly would be nice to see Lodsys smacked around in court a bit, but Lodsys and its secretive "owners" are still likely making out like bandits by effectively taxing tons of app makers.

Okay, let's start this out right by noting that the headline is only slight hyperbole. We've already talked about the TV networks suing Aereo for letting people connect, via the internet, to a TV antenna that picks up over-the-air (i.e., free) TV programming in NYC. I still can't quite figure out what the legal argument is here, other than that it upsets their business model. Watching over-the-air TV programming is, obviously, perfectly legal. We've yet to see a competent claim that place shifting legal TV is illegal. About the only real complaint is that this has the chance to drive more people to cut the cord, rather than pay ridiculously high cable/satellite TV prices. Of course, the networks these days thrive because of the insanely high carriage fees they get to charge the cable/satellite guys to include their network programming.

But, you know, disrupting the TV networks business model isn't illegal.

Yet, as with the DISH Networks case, wherein the networks seem to be claiming that skipping commercials is illegal, the networks in the Aereo case don't seem to have much of an argument other than "this disrupts our business model."

In a hearing about whether or not the court should issue a preliminary injunction (as has happened in the similar, but different in important ways, ivi and Zediva cases) the judge didn't just roll over for the networks, and allowed Aereo's lawyers to grill an exec from CBS, who more or less admitted that they think (1) the DVR is a bigger threat than Aereo and (2) that their main issue is that Aereo may lead to more cord cutting.

But, again, getting more people to cut the cord isn't illegal. This is, once again, appearing like a "felony interference with a business model" case. The network exec actually tried to make the argument on the stand that the fact that someone might cancel their cable subscription to use Aereo (cord cutting) is a form of "harm" that requires Aereo be shut down by preliminary injunction. Thankfully, the judge wasn't buying that logic:

The judge also got into the act somewhat, addressing broadcasters' insistence that any customer who cancels his or her cable service to sign up with Aereo is a problem. How does subtracting one subscriber impact advertising, asked the judge, which caused the CBS executive to admit that it would have to be one Nielsen household that canceled for impact, and later that it would more likely have to be a substantial number of defections.

There was some other damning info that came out in the hearing, including the fact that the TV networks refused to even talk to Aereo, never sent a cease & desist, and only decided to sue once they found out that Barry Diller was backing Aereo. Hopefully, the judge refuses the injunction. At the very least, it's good that he's not willing to just roll over and kill innovative startups because they mess with the entertainment industry's business model.

We've certainly seen the entertainment industry continually try to pretend that Hadopi's clear failure is a success story. However, sometimes it seems to go from just massaging the numbers into outright denial. That seems to be the case with Nicolas Seydoux, who is both the president of a French film company and the head of the local anti-piracy organization, ALPA.

In a recent statement, Seydoux insisted that the "methods developed by ALPA" (going beyond just Hadopi) made sure that not a single French film was downloaded between May 15th and December 15th in 2011:

“Between 15 May and 15 December 2011, no French film has been downloaded from the Internet,”

Oddly, he doesn't even seem to distinguish authorized online movie services from unauthorized. He just insists that no films have been downloaded. At first, I thought that perhaps he really meant that no new French films had been leaked online, but that's not what he says. He literally claims that zero French films were downloaded during those seven months. I guess he's declaring victory for his anti-piracy organization, but it's impressive how the pure bubble he's living in does not even come close to reflecting reality.

Remember how we were just talking about Senator Chris Coons, and the fact that maybe (just maybe) he was realizing that pushing for ridiculously over-aggressive "anti-piracy" laws without understanding the details was a bad idea? Yeah, apparently that lesson didn't sink in very well. On Wednesday, Coons appeared at an event put on by the US Chamber of Commerce (the main lobbyists pushing for PIPA and SOPA), in which he called for new SOPA/PIPA-like laws and cheered on some ridiculously bogus "new research" from the US CoC claiming that "IP Creates Jobs for America."

The "research" uses the same bogus and debunked methodology that the US Chamber's "Global IP Center" has been championing for a while. First, you define what industries are considered "IP-intensive." You make this as broad as possible, so you include (for example) the tech industry (they get patents!), even though they're among the ones fighting to stop SOPA/PIPA-like laws, and also fighting to reform patent laws that have restricted innovation. Great. Then you list out all the jobs in those industries. And then you falsely claim that those are jobs that were "created by IP laws."

Except almost none of that is accurate. But it is a neat (though shameless) political scam to count those who are opposed to these kinds of laws and pretend they're in favor of them. Shame on Coons for falling for such blatant propaganda. Perhaps he should talk to his son, who explained to him why the bills he supported earlier this year would cause significant problems for the internet.

Meanwhile, as a part of this program, it appears that they're releasing totally misleading and laughable state-by-state profiles of how many "jobs" were "created" by IP. Here's California's (warning: pdf). It claims that IP supports 55% of the jobs in California's private sector -- and certainly suggests that those jobs wouldn't exist if we didn't have stronger IP laws (what with the big banner right above it declaring "IP Creates Jobs for California."

Yet the data shows no such thing. At no point do they even try to show a causal relationship between more draconian IP laws and more jobs. Because they know they can't. Instead, they use this bogus lumping together of any job that sorta kinda touches on IP laws and the massively ludicrous suggestion that those jobs only exist because of IP. I can understand why the Chamber of Commerce is promoting such a laughable study -- but it's a shame that a politician who claims to know better would fall for it.

As the fight over CISPA continues (apparently with some concerns that the existing bill is effectively dead in the water), the White House announced a new voluntary program for companies to share info about botnets in order to stop them. This raises the question, yet again, why we need laws like CISPA in the first place. Companies and the government can already share threat information without violating anyone's privacy. All CISPA and similar bills are really doing is making it easier to violate privacy rules when sharing that kind of information.

Famed Hollywood super agent Ari Emanuel (the model for Jeremy Piven's character in Entourage, and the brother of Chicago mayor/former Obama chief of staff Rahm Emanuel) doesn't have a particularly good history when it comes to his understanding of how technology and policy will develop. Two years ago, he insisted that he was talking to President Obama about getting a three strikes law in place in the US. Last year, of course, he was excited about new laws like SOPA/PIPA. That was at the AllThingsD conference, in which he chided a reporter at one point by saying that the reporter needs a history lesson and "the business of the movie business is DVDs."

This year, at the very same conference, he's changed his tune, but not his attitude or ignorance of technology. This year, he told the crowd that "the DVD business is gone" and everything was about TV, TV, TV. Except, once again, he appears to be ignorant or (more likely) in complete denial:

Emanuel: Cord-cutting's not happening.

Walt: But cord-never is happening.

Emanuel: I don’t think so. I think when people get to a certain age, they pay. Somebody’s got to pay for this, or you’re not going to get premium content, and I think that’s more valuable than "two dogs doing whatever they’re doing on a couch."

Some of this appears to be just plain old wishful thinking and some of it is ignorance. The actual numbers show that cord cutting is very, very real. Also, I'm getting pretty sick of the condescending ridiculousness where people insist that either we stick with the old model or all we have left are amateur animal videos (usually cat videos, but Ari went to the dogs). That's not just elitist. It's wrong. There's plenty of quality content that get produced outside of the traditional model, and the amount is growing. And, of course, the "somebody's got to pay for this" argument is a complete tangent. First of all, no, no one has to pay for anything, but more importantly, there are all sorts of interesting business models developing that don't require people paying for a jacked up cable subscription. Second, just because you want someone "to pay" for the content which pays your hefty salary, that has absolutely nothing to do with the reality of cord cutting. It's like the CEO of a horse buggy manufacturer insisting that no one's buying automobiles because "someone's got to pay" for all those horse buggies.

A little tidbit from history: it was the guy who left the horse & buggy business and went on to found both GM and Chevrolet (despite being fearful of those "dangerous" machines) who ended up being successful. Not the guys who clung to selling horse and buggies.

Emanuel pays some lip service to technology innovation (he even seems to like the idea of crowdfunding), and talks about how involved he is in digital projects. But he still comes at it from the perspective of "how can these new technologies protect my old way of doing business?" And there, apparently, every problem is Google's fault, because they haven't created the magic "stop piracy" button. He repeatedly mentioned Google, and how they had to "stop helping people steal my clients' content." When asked how, he admitted he has no idea. When asked if he wants them to censor search results, he responded:

I don’t want them to censor results, but they have a bunch of smart guys there that can figure this stuff out.

You see? Magic "stop piracy" button.

Josh Topolsky, from The Verge, apparently challenged him on this point, asking: "Aren’t you saying that the road is responsible for the fact that someone drove on it before they robbed my house?" Emanuel didn't like this analogy:

That’s a stupid example. Look, Google can filter and does filter for child pornography. They do that already. So stealing is a bad thing, and child pornography is a bad thing.

Of course, this once again displays his ignorance. Child porn is easily identifiable by anyone who sees it. There is no "legal" child porn. There is no "authorized" child porn. There is no "fair use" child porn. There is no condition under which that content is legal and there are no legal questions to be answered in filtering it. Copyright is entirely different. You can't just "know" if the content is infringing. As we saw in the Viacom case, companies upload authorized stuff all the time, and it's often impossible to distinguish from unauthorized content. Separately, you can't create an algorithm that detects fair use. Or the public domain. Point being: it's not that easy and it's silly to claim otherwise.

Emanuel, like many people, also seems to have a blindness for how the situation he's in is no different than the situation others have faced. He talks about how the music industry should have embraced Napster when it came along -- but when he's asked about embracing similar platforms for TV, he immediately says that's ridiculous, because "these things cost lots of money." Again, we're in "wishful thinking" land, where because the producers of content do little to keep down costs, old and obsolete business models must stay in place, and new and innovative platforms must be censored.

The comment that really sums up his worldview is when he's asked about changing market behavior, whereby people mutlitask while watching TV. He says:

“I’m okay with a little bit of disruption, and let’s see what happens. I dunno. I’m good with it.”

This is the common viewpoint of the legacy player about to be disrupted in a big, bad way. They always insist that they're okay with disruption -- but in moderation. There are two really funny things about this quote. The first is the idea that disruption comes in bite-sized increments. That's not how it works. Disruption comes in massive waves that are unstoppable. And that leads to the second funny thing: he seems to think that his opinion on disruption and whether or not he's "good with it" matters to whether or not it will actually happen.

The disruption is already underway. And, for now, it looks like Emanuel's still hanging on to his cash-cow horse buggy business, while insisting that the road pavers really need to "do something" about those dangerous "automobile" things.

While we've been mostly focused on the New Zealand aspects of the Megaupload case, the company (and the individuals sued) have made two interesting filings with the district court in the US concerning the case. The first one (pdf) seeks a dismissal of the company from the case for an issue we discussed back in April: criminal law requires that the defendant be served, and you can't serve a foreign company. Thus, there is no legal way for Megaupload to be tried under criminal law:

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)...

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

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).

The International Institute of Communications is hosting a particularly one-sided "roundtable seminar" in Hong Kong this week about "content piracy." Just from that phrase, you should know the deck has been stacked against a reasoned analysis of the nature of internet communications. So, it shouldn't be a surprise that the RSVP email is actually from News Corp., or that the "agenda" of the session is entirely one-sided, and suggests a pretty impressive tone-deafness to the worldwide protests against SOPA/PIPA and ACTA. For example, the final question is particularly amusing:

Are there arguments against actions aimed to reduce the impact of these overseas rogue websites?

Apparently, all the concerns about collateral damage, free speech, due process, internet security and the like fell on deaf ears at News Corp. Instead, they seem to be wondering how anyone could possibly have an argument against the next SOPA. An intellectually honest discussion would at least admit that there are arguments being made both for and against these kinds of actions, and actually explore the reality. As we've noted plenty of times in the past, it's no secret that online infringement represents a challenge for established players, but that doesn't mean the immediate reaction should be to go on the attack in a way that creates many more problems, and is unlikely to solve the problem they think they're attacking. So, the argument "against" going after such websites is that it won't work, it's a waste of time and money, it will have tons of collateral damage... and you can better deal with the "problem" by providing more quality legitimate services without restrictions and at better prices. See? Not that hard.

In a case that appears to parallel the Viacom/YouTube case in the US, French TV network TF1 sued YouTube/Google (and competitor Dailymotion), claiming that those sites were liable for infringing videos uploaded to the site. However, in a new ruling, a French court has dismissed the case. As with other, similar cases, the French court found that Google had made "sufficiently adequate efforts" to takedown infringing content when it found out about it. More specifically, the court properly noted that users were responsible for content uploaded, rather than the site.

"The defendant is not responsible in principle for the video content on its site; only the users of the site are," the decision reads.

"It has no obligation to police the content before it is put online as long as it informs users that posting television shows, music videos, concerts or advertisements without prior consent of the owner is not allowed."

The case went so poorly for TF1 that it was told to pay Google's legal expenses. TF1 has suggested that it will appeal, calling the ruling "surprising."

There have been a series of similar lawsuits filed around the globe, with mixed results, but hopefully we're reaching an era where courts (and companies) finally understand that a platform should never be directly liable for the actions of its users.