The fact of the matter is that the notion of criminal liability for secondary copyright infringement does not exist in U.S. law. The attempt by prosecutors to expand criminal liability for secondary infringement by couching it as “aiding and abetting” or “conspiracy” goes against established precedent in case law and repeated positions taken by the U.S. Congress.

The Copyright Act creates civil and criminal liability for various acts of copyright infringement, but it does not expressly give rise to liability for infringement committed by third parties. Furthermore, the U.S. Supreme Court has defined specific circumstances under which service providers may be held civilly liable (i.e., not criminally responsible) for direct copyright infringement by third parties, such as distributing “a device with the object of promoting its use to infringe copyright.”

The fundamental legal problem with this aspect of the government’s case is that only Congress can create new criminal liability; judges cannot. Previous instances in which courts have imposed civil liability for secondary copyright infringement – based on application of common law principles – do not apply in criminal proceedings, as federal crimes are “solely creatures of statute.” Whatever authority the courts may have had to recognize a contributory theory of copyright liability in the civil context, the courts simply have no power to impose a basis for criminal liability beyond what is expressly authorized by statute.

Chris Dodd’s jump from the U.S. Senate into the cockpit of the MPAA was an equivalent move. As the new Chairman and CEO of the MPAA, Chris Dodd improperly leveraged his friendship with Joe Biden to achieve the MPAA’s objectives. Former Senator Dodd’s relationship with the Vice President– who comes off manipulated, a cheerfully credulous facilitator – together with the Obama Administration’s ravenous hunger for campaign contributions, has given the MPAA absolute control over how the U.S. Department of Justice plays the game in enforcing copyright law. This capture is nowhere more clearly demonstrated than in the Megaupload/Kim Dotcom prosecution.

The lopsided votes showed lawmakers desperate to regain public trust in an election year, when the public approval rating of Congress has sunk below 15 percent.

Since most politicians' campaigns are largely funded by wealthy companies and individuals, it would give voters a better sense of who the candidate they are voting for is actually representing if the company's logo, or individual's name, was prominently displayed upon the candidate's clothing at all public appearances and campaign events. Once elected, the candidate would be required to continue to wear those "sponsor's" names during all official duties and visits to constituents. The size of a logo or name would vary with the size of a donation. For example, a $1 million dollar contribution would warrant a patch of about 4" by 8" on the chest, while a free meal from a lobbyist would be represented by a quarter-sized button. Individual donations under $1000 are exempt.

This case highlights not only the issue of “state capture” by the Hollywood lobby, but at the same time should lead to a thoughtful discussion on how we define corruption. No one would venture to allege that there is any form of cash payment taking place when official bodies appear to act at the behest of special interests motives. Because that’s not how these groups work.

It is a demonstration of the growing ambiguity of the lines between regulators and the regulated, and the proper role of intellectual property in the digital age. As we’ve seen in the sad and tragic case of Aaron Swartz, for whom Prosecutor Carmen Ortiz was seeking 13 criminal charges and more than 50 years in jail, the American justice system is increasingly flawed by this prosecutorial exuberance aimed at future political reward.

It is one thing when the victims of these abuses are American citizens, who live at the whim of an unaccountable prosecutorial machine driven by personal political ambitions and an appetite for headlines. It is something else entirely when these prosecutors visit their ambitions upon foreign citizens, charging them with heinous crimes with no basis under law, even if that person has never once set foot inside the United States (like Kim Dotcom).

With this attempt to “colonize” the global internet under U.S. laws, Washington is quickly making a bad name for itself, and putting its considerable influence on the wrong side of digital rights, free markets, and competitive innovation. They do this in the name of protecting a broken business model, subsidizing monopolies, and seeking to destroy crucial online functions instead of adapting to the incredible opportunity afforded to them through mass connectivity. We deserve better, we can do better, and everyone can benefit from a more reasonable approach focused on the best interests of the public, not the best interests of lobbyists and the politicians in their pockets.

We see this as a grand ideological debate with far-reaching implications, and sadly, my lengthy experience in countries where special interests control the levers of power may have some utility here.

• Robots: The idea here is that automation has meant fewer jobs, and thus has held down wages and kept the supply of workers high. This is an old argument, of course, but perhaps one worth thinking about. We'll discuss it more below.
• Robber barons: That is, monopolists. The argument here is that when you see an aggregation of wealth to "capital," it suggests that the free market is somehow "stuck," and one possible reason is that the "owners of capital" have effectively created monopolies, allowing them to retain more than a free market might allow, via monopoly rents.

Barry Lynn and Philip Longman have argued that we're seeing a rapid rise in market concentration and market power. The thing about market power is that it could simultaneously raise the average rents to capital and reduce the return on investment as perceived by corporations, which would now take into account the negative effects of capacity growth on their markups. So a rising-monopoly-power story would be one way to resolve the seeming paradox of rapidly rising profits and low real interest rates.

You see, according to the Organization for Economic Cooperation and Development, people in Sweden, the Netherlands, and Finland pay on average less than $130 a year for cell phone service. Americans pay $635.85 a year. That $500 a year difference, from most consumers with a cell phone, goes straight to AT&T and Verizon (and to a much lesser extent Sprint and T-Mobile). It’s the cost of corruption. It’s also, from the perspective of these companies, the return on their campaign contributions and lobbying expenditures. Every penny they spend in DC and in state capitols ensures that you pay high bills, to them.

I've had conversations with Democratic givers out here in the Bay Area and I'll tell you, you wouldn't believe the requests they're getting. The opening ante is a million dollars. It's not, gee, it'd be nice if you give a million. That's sort of the baseline. This is unprecedented. And, in fact, one thing that John and I experienced was that sometimes the corporations that didn't like the system would come to us and say, you know, you guys, it's not legalized bribery, it's legalized extortion. Because it's not like the company CEO calls up to say, gee, I'd love to give you some money. It's usually the other way around. The politician or their agent who's got the Super PAC, they're the ones that are calling up and asking for the money.

Jimmy Williams: A lot of them would call and say, "Hey, can you host an event for me?" And you never want to say no. Actually, no. You always want to say no. In fact, you always want to say no. But, you could look on your phone with these caller IDs and you would be like, really? I'm not taking that call.

Alex Blumberg: Oh, so you would dodge calls for fundraising?

Jimmy Williams: Oh yeah. Every lobbyist does. Are you kidding? You spend most of your time dodging phone calls. Oh yeah.

Walt Minnick: You essentially wear out your friends and you wear out the people who are your natural supporters, because if someone writes you one check or comes to a fundraiser, they get on a list. And three or four months later you call them back again. And the best thing about being an ex-congressman is my friends now return my phone calls.

John McCain: At first, I was outraged. The day that Russ and I went over and observed the arguments, the questions that were asked, the naivety of the questions that were asked and the arrogance of some of the questioners, it was just stunning. Particularly Scalia with his sarcasm. Why shouldn't these people be able to engage in this process? Why do you want to restrict them from their rights of free speech? And the questions they asked showed they had not the slightest clue as to what a political campaign is all about and the role of money that it plays in political campaigns. And I remember when Russ and I walked out of there, I said, Russ, we're going to lose and it's because they are clueless. Remember that day we were over there, Russ?

Russ Feingold: Absolutely, John. I couldn't agree with you more. It clearly was one of the worst decisions ever of the Supreme Court. The trouble with this issue-- and I think John would agree with this-- is people have gotten so down about it, they think it's always been this way. Well, it's never been this way, since 1907. It's never been the case that when you buy toothpaste or detergent or a gallon of gas, that the next day that money can be used on a candidate that you don't believe in. That's brand new. That's never happened since the Tillman act and the Taft Hartley Act. And so, people have to realize this is a whole new deal. It's not business as usual.

Russ Feingold: We managed to get-- against all odds, we did get people. It took a lot of hard work. Now the problem is, of course, is people are reticent to do that because they got elected under the system.

Alex Blumberg: So it's just fear of change?

Russ Feingold: Sure. When you win a certain way, your people say to you, hey, this is how we do it and this is how we won. We better not mess with success. I think that's one of the problems in this presidential race, where not only the Republicans, but even my candidate, President Obama, has opened the door to this unlimited money through some of his people. It's hard to get people to change something after they win that way. And that's one of my worries about it.

For example, former Senator Judd Gregg (R-NH) spent his last year in office fighting reforms to bring greater transparency to the derivatives marketplace. Almost as soon as he left office, he joined the board of a derivatives trading company and became an "advisor" to Goldman Sachs. Risky derivative trading exacerbated the financial crisis of 2008, yet we’re stuck under the laws written in part by Gregg. How much has he made from the deal? Were his actions in office influenced by relationships with his future employers?

Former Congressman Billy Tauzin (R-LA) made $19,359,927 as a lobbyist for pharmaceutical companies between 2006 and 2010. Tauzin retired from Congress in 2005, shortly after leading the passage of President Bush’s prescription drug expansion. He was recruited to lead PhRMA, a lobbying association for Pfizer, Bayer, and other top drug companies. During the health reform debate, the former congressman helped his association block a proposal to allow Medicare to negotiate for drug prices, a major concession that extended the policies enacted in Tauzin’s original Medicare drug-purchasing scheme. Tauzin left PhRMA in late 2010. He was paid over $11 million in his last year at the trade group. Comparing Tauzin’s salary during his last year as congressman and his last year as head of PhRMA, his salary went up 7110%.

Former Senator Chris Dodd (D-CT) makes approximately $1.5 million a year as the chief lobbyist for the movie industry. Dodd, who retired from the Senate after 2010, was hired by the Motion Picture Association of America, the lobbying association that represents major studios like Warner Bros. and Universal Studios. Although the MPAA would not confirm with Republic Report Dodd’s exact salary, media accounts point to $1.5 million, a slightly higher figure than the previous MPAA head, former Secretary of Agriculture Dan Glickman. Dodd received about a 762% raise after moving from public office to lobbying.

Former Congressman Steve Largent (R-OK) has made at least $8,815,741 over the years as a lobbyist for a coalition of cell phone companies and related wireless industry interests. Republic Report analyzed disclosures from CTIA-The Wireless Association, the trade group Largent leads. CTIA counts wireless companies like AT&T, HTC, and Motorola as members. Largent left Congress in 2002, when his pay was about $150,000 as a public official. His move to the CTIA trade association, where he earns slightly more than $1.5 million a year according to the latest disclosure form, raised his salary by 912%.

On the surface this is pretty hypocritical, and more than a little ironic: in the past, the UK government asked media outlets to brief them on government secrets they received from Wikileaks before publishing them. Now, a government-run inquiry is asking Wikileaks to hand over information on UK media outlets. Apparently they don't hate leaks as long as they flow in the right direction.

Hopefully this represents another step towards governments recognizing that Wikileaks isn't pure evil, even if there are questionable things about the operation. Though there are risks, bringing sensitive information to light is often in the public's best interest—indeed, that's the whole spirit behind public inquiries. The Leveson Inquiry was convened when the News of the World phone-hacking scandal pointed to a secret culture of corruption in the press, and now Wikileaks is helping to expose it further. If governments attempt to maintain secret cultures of their own, they too will be exposed.

The Swedish prosecutor sent out a memo in 2006 saying that TPB wasn't guilty of "main" crimes -- at best it aids and abets (he also mentioned that the people running TPB were very clever). But Hollywood was not happy with this and forced the Swedish Minister of Justice to visit the White House and talk about it. The United States told Sweden that if they didn't get rid of the site, they would not be allowed to trade with the US!

The minister (illegally) told the prosecutor what had happened which forced him to raid TPB -- only a few weeks after sending out that memo about how legal it was.

Evidently, Warner Brothers felt that the investigation was taking too long. The studio contacted the police officer in charge of the investigation (one person that worked mostly by himself) and before I had even been questioned by him, he interviewed for a job with Warner Brothers.

When we found out he'd been hired (by him changing his employer from "Polisen" to "Warner Bros" on Facebook) the reply we got was that it was proof that Swedish IT police are of such high caliber that even the big US companies would hire them.

I got promoted from "witness" to "suspect" a week after the job was promised.

During the trial it turned out that the judge was the chairman for the Swedish pro-copyright society, one lay judge ran a record company, another one was formerly the chairman for the songwriter lobby organisation. I could go on.

We’re not surprised by this. The previous court cases has been filled of corruption. From having the minister of justice pressured by the US to illegally make a case of TPB, through the police officer responsible for the investigation (Jim Keyzer) “just happened” to get a job at Warner Brothers the weeks before I myself got promoted from a witness to a suspect, to the judges in the court cases being either board members, or in one case the actual chairman of the board, for the swedish pro-copyright society, it was clear to us that the supreme court – where many of the judges make a lot of money on their own copyrights – would be hard to persuade to take the case. Even though most of the public would want the case tested there. Even though it’s one of the most important cases for all of the EU.

I’m angry because the founders of The Pirate Bay don't get the recognition they deserve. For pushing the development of new services further and forcing the media industries to distribute their content in a manner that people want, (ie not plastic discs and windows policies).

"The MPAA is so brazen in its efforts to buy legislation with campaign cash that its leader, himself a former senator, sees nothing wrong with threatening legislators on national TV. We think it's time that Congress showed that its votes are no longer for sale. The first thing Congress must do is give back the MPAA's tainted campaign cash or give it to charity. Congress must make it clear to the world that it won’t be bullied into supporting censorship."

"Those who count on quote 'Hollywood' for support need to understand that this industry is watching very carefully who's going to stand up for them when their job is at stake. Don't ask me to write a check for you when you think your job is at risk and then don't pay any attention to me when my job is at stake,"

Public Knowledge welcomes constructive dialog with people from all affected sectors about issues surrounding copyright, the state of the movie industry and related concerns. Cybersecurity experts, Internet engineers, venture capitalists, artists, entrepreneurs, human rights advocates, law professors, consumers and public-interest organizations, among others should be included. They were shut out of the process for these bills.

We suggest that in the meantime, if the MPAA is truly concerned about the jobs of truck drivers and others in the industry, then it can bring its overseas filming back to the U.S. and create more jobs. It could stop holding states hostage for millions of dollars in subsidies that strained state budgets can’t afford while pushing special-interest bills through state legislatures. While that happens, discussions could take place.

In the first quarter of this year, what was the number one issue that Congress addressed? In the middle of two wars, a huge unemployment problem, huge budget deficit problem, still issues about health care, still no addressing global warming—what’s the number one issue they addressed? The banks’ swipe-fee controversy. Why do you address the banks’ swipe-fee controversy? There is not one congressman who decided to run for Congress because he thought, "I'm going to deal with the problem of the banks' swipe fees." It's only because if you can dance as a congressman with a little bit of uncertainty of which side you're going to come down on in this controversy, millions of dollars gets showered down upon you because there's $19 billion on the table depending on how this issue is resolved. So there Congress is driving the agenda in part because of the fundraising opportunities the agenda produces.

Switch to C-SPAN covering the U.S. Congress and it's a completely different picture. You can't see it, because they don't allow the camera to pan around, but the hall is empty, people coming to speak just to C-SPAN--they're not speaking to each other--all of the activity of negotiation and deliberation is done outside the chamber; there's no deliberation, so you just have to ask, "Why did we create a Congress?" The framers didn't sit down and set up a Congress so they could imagine these 535 independent contractors all arbitraging fundraising opportunities. If that's what the institution is, then let's just shut it down.

Allison Halataei, former deputy chief of staff and parliamentarian to House Judiciary Chairman Lamar Smith (R-Texas), and Lauren Pastarnack, a Republican who has served as a senior aide on the Senate Judiciary Committee, worked on online piracy bills that would push Internet companies like Google, Yahoo and Facebook to shut down websites that offer illegal copies of blockbuster films and chart-topping songs.

“They can provide invaluable insight to people on the outside — even in the consultation mode,” one tech industry lobbyist said, noting that Halataei had been Smith’s secondhand person and knows how the Texas Republican thinks and what would be an effective lobbying strategy.

Additionally, the Senate and House panels work closely together, and both Halataei and Pastarnack have ties to staffers in the chambers they didn’t serve in and aren’t banned from lobbying.

In order for the deal to work out the composer had to assign the track in question to the music publishing catalogue of the Gerrits, who owns High Fashion Music. In addition to this, the music boss demanded 33% of all the money set to be recouped as a result of his efforts.

The conversation between Gerrits and the composer’s financial advisor was recorded by Pownews, and during the conversation the financial advisor confronts Gerrits with his unconventional proposal.

“Why do you have to earn money?” he asks, as usually all of the money goes directly to the artists.

“It could be because a lot of people in the industry know that they are in trouble when I get involved,” Gerrits responds, adding that he can bring up the topic immediately in a board meeting next week.

Once again trying to find confirmation for the proposal, the composer’s advisor later asks if the music boss indeed wants one-third of the money.

“Yes, that’s the case, but then [the composer] would make 660,000 euros and now he has nothing,” Gerrits responds calmly.

DataTreasury's lawsuits are handled by Texas trial-law kingpins Nix, Patterson & Roach. In the 2010 elections, the firm was the third-largest contributor to the Democratic National Committee, pouring in $179,000, behind only Google and the Law Offices of Peter G. Angelos, according to the Center for Responsive Politics. When Republican lawmakers bemoan "Democrats and trial lawyers," they're talking about Nix Patterson and a handful of other big law firms.

Nix Patterson brought in an even bigger fundraising champion to lobby Democrats for DataTreasury: Ben Barnes. He and his wife Melanie have dumped $379,000 of their own money into politics over the years, according to Center for Responsive Politics data, with every penny going to Democrats. Barnes is also one of the most influential fundraising bundlers in politics. In the first half of 2009 alone, he pulled together $630,450 for the Democratic Congressional Campaign Committee -- more than anyone else, according to the Sunlight Foundation.

Barnes is not a man congressional Democrats keep waiting. And he's previously worked directly with Pelosi, who attended a fundraiser at Barnes' Austin home in 2009. Pelosi's office did not respond to inquiries on her meetings with the fundraising giant, but when asked by HuffPost whether he had won over Pelosi on Section 18, Barnes said that he had.

"Oh, yeah," Barnes told HuffPost. "For some time I've worked with DataTreasury that has the patent all the banks are worked up about."

By revolting on the patent bill, Pelosi was throwing in her lot with Reps. Maxine Waters (D-Calif.), Dan Boren (D-Okla.), Aaron Schock (R-Ill.) and Jim Sensenbrenner (R-Wis.), who circulated a letter on June 15 urging their colleagues to oppose Section 18, saying the language "carves out a special niche" for Wall Street that would "stifle innovation."

This odd bipartisan coalition was going up against the entire New York delegation, led by Rep. Joseph Crowley (D-N.Y.), chairman of the corporate-friendly New Democrat caucus, who declined to comment for this story. As the behind-the-scenes struggle intensified, DataTreasury promoted the idea that Section 18 was a covert bailout for the banks. If courts ruled that the new law amounted to an unconstitutional taking of property -- a very big 'if' -- then taxpayers would ultimately have to pay back the bank winnings resulting from the bill.

The complaint alleges that SGAE operatives set up companies and used revenue destined for artists to generate profit for themselves and their families, and that money bound for artists living abroad was diverted to personal Swiss bank accounts.

At the center of the storm is SDAE, the digital rights arm of SGAE. Although a notionally separate entity, SDAE is fully operated by SGAE. It appears that when SDAE was being set up, SGAE hired a for-profit company called Microgenesis as consultants.

Microgenesis describe themselves as “a team of specialists in engineering, consultancy and development, managed by individuals with established experience in the fields of intellectual property, as well as the culture and entertainment industries.”

Microgenesis operated a number of companies which provided various services for SGAE and SDAE, some of them suspiciously registered at SGAE/SDAE’s own office address. The problems only deepen when one learns who is behind Microgenesis.

Jose Luis Rodriguez Neri is Director General of SDAE and ex-director of SGAE. His wife, Maria Antonia Garcia Pombo, is the ex-president of Microgenesis. Partner-Chief Legal Officer of Microgenesis is Eva Garcia Pombo. She is Neri’s sister-in-law.