Techdirt. Stories filed under "criminal"

Spain Considers Making Digital Copyright Law Worse: Pleasing The US Again?

Glyn Moody — Fri, 1 Mar 2013 03:41:18 PST

We wrote a couple of weeks ago how some were arguing that Spain ought to go back on the "naughty" Special 301 list for failing to show any "positive developments" on the copyright front recently. By an interesting coincidence, the Spanish Internet Association has just published a leaked draft of proposals to make digital copyright law in Spain even harsher. Here's how the Web site ADSL Zone describes them (original in Spanish):

The new proposals have a clear intention: to amend the Criminal Code to allow criminal prosecutions of Websites that provide links. According to the leaked document it will be an offense to provide ordered listings and categorized links to protected content, developed for this purpose and involving an active and non-neutral maintenance and updating of those lists.

Interestingly, Google wouldn't be affected by the new law according to ADSL Zone, nor would "occasional links" be prosecuted. Of course, everything would then hinge on what "occasional" meant in this context.

There's also the following proposal:

Second, the paper seeks to limit the concept of private copying. This will require us to be in possession of the "original media". This is really incompatible with the current reality, since there are legal platforms like Spotify or iTunes where you do not have that "native support".

The concept of "original media" is meaningless in the digital realm, where files are copied many times as they traverse the Internet, or as people move them around on their storage media. How on earth would you prove that your digital copy was "original"?

Finally, there is a suggestion for making the copyright levy system not only worse, but in conflict with current EU plans to rationalize it:

no matter whether we copy or not, whether or not we have the "original media", the fee will be charged in any case.

In an age where storage media are becoming ubiquitous -- if Samsung's refrigerator is running Android, it must have storage -- such levies are anachronistic and harm innovation, so Spain's plans to push on with them is one more indicator that it's heading in the wrong direction. The big question, of course, is why it is doing this: is it simply the usual story of lobbyists' privileged access to government ministers who aren't interested in whether the new measures are fair or even effective? Or is this once more the heavy hand of America reaching across the water to put a little pressure on its Hispanic friends...?

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Is The Line Between 'Hacker' And 'Criminal' Really That Fuzzy?

Mike Masnick — Tue, 29 Jan 2013 09:35:13 PST

We recently wrote about a series of cases where young computer hackers were either charged or threatened with criminal charges for doing things that don't seem particularly criminal at all. The NY Times now has a blog post on more or less the same subject, but focusing on the "fuzzy and shifting line between hacker and criminal." While it's good that more attention is getting paid to these kinds of questionable cases, I wonder if that framing is really accurate. I don't think there's a "line" -- fuzzy, shifting or not -- between "hacker" and "criminal." The two things are different. Can you be a criminal hacker? Sure. But the problem is that many non-techie folks seem to assume that any kind of hacking must be criminal. And that's the problem. It's not that some imaginary line is moving around, but that some people don't seem to understand that hacking itself is not criminal, and that there are plenty of good reasons to hack -- including to expose security holes.

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German Court Sees Through The DOJ Fairy Tale, Rejects Attempt To Seize Megaupload Assets

Mike Masnick — Wed, 14 Nov 2012 11:45:00 PST

We've covered a series of embarrassing setbacks for the US government's case against Megaupload over the past few months. It's a pretty stunning trail of errors by US officials who seemed to think that a scary story about a "bad man" would trump a lack of actual evidence or following legal procedure. While the case may hold up in the long run, it seems like everywhere you look there's evidence of highly questionable activity by the government.

The latest setback comes from Germany, where the US sought assistance from officials in seizing various assets of Dotcom's or Megauploads. However, the court has now rejected the request:

The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a criminal offence.

According to the German 'Telemediengesetz' (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.

According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.

Of course this was the same point that we raised the day that Megaupload was shut down. While it may be true that many Megaupload users have infringed on copyrights, there's a massive leap from that point to the idea that Megaupload is a criminal enterprise -- yet the US government's case basically skips over any details to make that leap. Thankfully cooler heads are recognizing that a significant amount of the US's case seems to be based on a fairy tale that US officials -- under the influence of Hollywood -- keep telling.

Tip to DOJ officials under the sway of Hollywood's version of the internet: remember, these people make their livings telling fairy tale stories. You know those opening credit lines about how something is "based on a true story"? Yeah, quite frequently the actual truth is a long way from what's shown. It seems that you may have been taken in by another such Hollywood "true" tale.

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Court: If Violating Your Privacy Helps The Police, It's Not Violating Your Privacy

Mike Masnick — Wed, 15 Aug 2012 13:13:00 PDT

In a horrifyingly bad ruling, the 6th Circuit appeals court has said that the owner of a prepaid phone has no 4th Amendment rights in protecting his location info from law enforcement. There have been a number of cases touching on this subject, with a few different rulings back and forth, including more than a few in the federal courts that argue tracking someone's location isn't a 4th Amendment violation. But, even if you grant that, this particular ruling is egregiously bad and poorly argued. The EFF highlights some of the more brain-numbing aspects of the ruling:

In what can only be described as a results-oriented opinion, the court found Skinner had no reasonable expectation of privacy in the cell phone location data because "if a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal." Otherwise, "technology would help criminals but not the police." In other words, because cell phones can be used to commit crimes, there can't be any Fourth Amendment privacy rights in them. If this sounds like an over-simplistic description of the legal reasoning in an opinion we disagree with, the sad reality is that the court's conclusion really did boil down to this shallow understanding of the law.

Yes, you read that right. Basically, if you've broken the law, according to the court, you have no 4th Amendment rights. And, then it goes further, by basically noting, because anyone might be a criminal, we might as well remove all of their 4th Amendment rights as well, because doing so might help the police. Of course, this goes against the very basis of the 4th Amendment.

The story involves police tracking a guy accused of being a drug runner, via the GPS in his pre-paid phone, without getting a warrant. The guy, Melvin Skinner, pointed out that this violated his 4th Amendment rights, but, as noted above, the court disagreed.

Julian Sanchez walks through the many ways the court got some rather basic things wrong in their ruling:

The court proceeds through a series of lazy and underdeveloped analogies:

Otherwise dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent number of cell phone technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

But it does not follow at all. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection,” the Supreme Court explained in the seminal case of Katz v. United States, “But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Any member of the public can buy a dog and follow a scent. Any member of the public can view and copy down a license plate number. Any member of the public can view the external paint job of a car. But any member of the public cannot just track the GPS signal of a random cell phone—and if they could, most of us would be extremely wary about carrying cell phones. Unlike all these other examples, GPS tracking as employed here depends crucially on the ability of police to invoke state authority—a seemingly salient distinction the court fails to take any note of.

That's not all. The court seems equally confused about other cases, and both the EFF and Sanchez's link above details other mistakes concerning other case law. This isn't just a case of people having different interpretations. This seems like a clear case of a court not really bothering much with the details or the case law and just seeing one thing: this guy was a criminal and the GPS info was useful in finding him, therefore it must be okay. This is a very troubling precedent to have on the books no matter how you look at it.

And it will impact many Americans. While the focus in the ruling is on the "but he's a criminal!!!!" aspect, it applies across the board to pre-paid mobile phone users (well, at least those covered by the 6th Circuit). And that's about a quarter of mobile phone subscriptions. As the EFF put it, in an effort to make sure criminals get no privacy location privacy rights, the court has killed such rights for everyone else as well -- which is exactly the opposite of how our system is supposed to work.

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Rojadirecta Points Court To FlavaWorks Ruling Concerning Infringement On Linking Sites

Mike Masnick — Tue, 14 Aug 2012 20:24:28 PDT

We recently wrote about the (somewhat surprising) ruling by Judge Posner in the 7th Circuit appeals court's Flava Works vs. myVidster case, in which Posner pointed out that a site providing links to infringing content is not infringing. He actually ruled that just watching the videos or embedding them are not direct infringement either. As we noted that seemed to have direct bearing on a number of other cases out there, including the criminal charges against Rojadirecta (and against TVShack's Richard O'Dwyer). It appears that Rojadirecta's lawyers wasted little time in letting the judge in their cases know about the ruling. While Rojadirecta's fight is in the 2nd Circuit, hopefully this helps the courts to recognize how ridiculous the governments' charges are. Even if they don't quite agree with Posners' ruling, just the fact that there are significant questions over whether or not linking/embedding are legal, should raise significant questions about the "willfulness" needed to show criminal copyright infringement.

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Publishing Execs Arrested, Face Jail Time, Because Book Tells People How To Back Up DVDs

Glyn Moody — Mon, 23 Jul 2012 11:15:00 PDT

Last month we wrote about a new copyright law in Japan whose punishments seemed so disproportionate it was hard to take it seriously. For example, downloading unauthorized copies or backing up content from a DVD were both subject to criminal penalties. According to this story from Daily Yomiuri Online, it looks like it's no joke:

The Metropolitan Police Department arrested Yoshiaki Kaizuka, 43, an executive of Chiyoda Ward publisher Sansai Books Inc., and three other company employees on suspicion of violating the Unfair Competition Prevention Law, and sent papers on the firm to the Tokyo District Public Prosecutors Office. According to a senior police official, these are the nation's first arrests over the distribution of software to remove copy protection.

And their terrible crime? Allegedly selling a book that told people how to make backup copies of DVDs. That, of course, would involve circumventing the trivial copy protection on DVDs, which was enough to trigger the arrests, apparently. But as a post on Wired.it points out, if publishers can get into trouble under the new law so easily, so might others: It's interesting to note that Japanese cyber Police could arrest the Amazon Japan CEO too as the online giant is selling a lot of magazines, books and software packages for DVD copy and ripping: exactly what put in trouble Sansai Books staff.
The same post notes that many GNU/Linux distributions come with the libdvdcss library which similarly allows the DRM system to be circumvented so that the DVD can be played, and would therefore fall foul of the new copyright legislation. So does the Japanese government plan to go after all the Web sites offering such software, and all the users?

The current action probably doesn't presage a massive crackdown on every infringing use, since that would involve arresting a significant fraction of the Japanese population. It's more likely to be an attempt to put the frighteners on people in the hope that everyone will stop downloading files and cease making backups. As we know from similar situations, that may work for a few months. But once things die down, people will go back to doing what they did before until the next time the Japanese authorities decide to make an example of someone, and the whole pointless cycle begins again.

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Hollywood Continues To Kill Innovation, Simply By Hinting At Criminal Prosecution Of Cyberlockers

Mike Masnick — Wed, 4 Apr 2012 09:40:00 PDT

We noted right after the US government shut down Megaupload, that it was creating massive chilling effects on all sorts of online cloud businesses -- leading some to already turn off useful services that consumers and businesses relied on.

It appears that process is continuing. Last week, Paramount's VP of "Content Protection," Alfred Perry, made a ridiculous and childish presentation in which he effectively put criminal targets on the backs of five companies, and suggested that they were all no different than Megaupload, and that the government was coming for them next: I find it amusing, by the way, that they've dropped RapidShare from the list. The company, which does offer the same basic services and gets a ton of traffic, has actually been one of the only cyberlockers who has hit back against Hollywood where it counts: with Washington DC lobbyists. RapidShare, of course, has also been found legal by multiple courts, because it follows the basic precepts of the DMCA and takes down infringing content when it discovers it. But the thing is, many (if not most) of the other sites on this list do the same thing.

The end result, however, is that the five sites on the list have been forced to go on the defensive hoping to avoid criminal prosecution with the federal government twisting everything they do to present it in the worst possible light.

MediaFire fired back at Perry, pointing out that the company is a large legitimate company run by reputable entrepreneurs, and one that has always worked with the MPAA and RIAA to stop the spread of infringing content. Similarly, PutLocker has fired back, telling TorrentFreak that Perry's comments were defamatory:

In any other industry, a person making this type of statement could be sued for libel. Funny how that works,” PutLocker Operations Officer Adrian Petroff told TorrentFreak.

“PutLocker takes a strong stand against copyright infringement and in the past year and a half we have taken down hundreds of thousands of infringing files and blocked the accounts of hundreds of repeat offenders,” adds Petroff. “PutLocker always cooperates with copyright holders and law enforcement agencies at home and abroad to uphold the rights of content producers and distributors alike.”

But the chilling effects here are very, very real. Two of the other five sites on the target list have now effectively made themselves useless for sharing legitimate files worldwide -- one of the key use cases for cyberlockers. FileServe and Wupload have turned themselves into pure backup services, rather than file sharing services, to avoid the risk of criminal prosecution.
Now, critics of these sites will rejoice in these two sites shutting down a useful feature. They'll insist that this proves either that they're "winning" the battle, or that these sites are somehow admitting that they were facilitating infringement. But that's a dangerous misreading of the situation. Were these sites used to infringe? Absolutely. But so was the VCR. So was radio. So were photocopying machines. So were DVRs. So were computers. The fact is that innovation leads to breaking down the old rules by enabling something new and useful.

And that's the real key here. Perry and the rest of the Hollywood legacy "content protection" crew freak out about 41 billion page views. What they ignore is that the reason there were 41 billion page views was because these sites were offering something useful that people wanted. But Perry isn't in the business of recognizing what the market wants. His very job title makes it clear that his job is holding back the tide. It's about "content protection" in a world where content can't be protected. If Paramount were run by execs who actually had vision and understood innovation, they'd see 41 billion pageviews and their eyes would light up at the massive opportunity. Just imagine what you could do with 41 billion pageviews? And, if you were a company like Paramount and could offer your content up legally, you'd have a huge head start over the cyberlockers. If anything is criminal here, it's the incredible shortsightedness of Paramount's execs, to spit in the face of consumers and a massive business opportunity for themselves.

Even worse, they're doing so by simply declaring innovative websites guilty of criminal charges, despite no actual charges being filed, no trial, no evidence and no chance for these companies to make their case. From a legal standpoint, this is despicable. It's standard operating procedures for a flailing, out of touch, anti-visionary company, however. It's just too bad that the world is letting a company like Paramount (and its parent company, Viacom) get away with such practices.

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Feds Response To Rojadirecta Demonstrates How S.978 Can Be Abused To Put People In Jail

Mike Masnick — Wed, 13 Jul 2011 10:31:17 PDT

We've had a bunch of posts about the potential unintended consequences of the anti-streaming law S.978 from Senators Amy Klobuchar, John Cornyn and Christopher Coons, and how it could be used to put people in jail for up to five years for merely embedding videos from YouTube, or for lipsynching. Supporters of the bill keep trying to claim this isn't true, and point out (accurately) that this is not what the bill is targeted at. It's true that this is not the target of the bill, but could it be used that way? Absolutely.

Supporters of the bill again point to the key provisions that would make the embedding of a video liable under the law, to claim that my statements are an exaggeration. Specifically, they highlight that a public performance (i.e., embedding of the video) is only a felony if "(1) it is willful (knowing and intentional) infringement (2) for commercial advantage or private financial gain (3) involving 10 or more performances within 180 days (4) that cause more than $2,500 in loss to the rights holder." As some supporters of the law state, embedding YouTube videos does not meet that threshold.

That's incorrect. The public performance is clear. Embedding on a website qualifies as a public performance due to the ridiculously broad and vague description of what constitutes a public performance under the law. Now, on to the other points. We can now support many of them (the ones that supporters of the law claim are impossible to show) with the Justice Department's own words, thanks to the recent filing against Rojadirecta's petition to retrieve its domain.

First up... willful infringement. The government opens by claiming that to establish "willfulness" you only need to show that the defendant "recklessly disregarded the possibility" that embedding the video might by infringing. Not only that, but it even suggests that all it needs to show is willfulness in the "intent to copy," rather than the intent to infringe.

Although the Second Circuit held in 1943 that willful intent in the criminal copyright context need only be shown as to the intent to copy the works, and not as to the intent to infringe the copyright... recent decisions in the Second Circuit in civil cases have made clear that "[t]he standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility."

Got that? The government believes that if you had willful intent just to copy the content -- as everyone does if you embed a video -- then willfulness can be established for criminal cases. If they bring in the standard for civil cases, then all they have to show is that you didn't pay attention to see if the video was covered by copyright law, and thus "recklessly disregarded the possibility." In other words, the government makes it clear that the bar here is low. Very, very low. Pretty much anyone who embeds a video has taken a proactive step. Willful? Check.

Next up is the big one. Personal or financial gain. This is the one that supporters of the bill insist is why my points are not valid. But, again, let's see what the government itself has to say in the Rojadirecta filing, in proving financial gain. Here, the government makes it clear that even if you don't get direct financial gain from the video, if you put any ads around it, even the automated AdSense ads that earn nothing, they have enough to nab you for financial gain:

As an initial matter, Title 17, United States Code, Section 506(a) "does not require that a defendant actually realize a commercial advantage or private financial gain. It is only necessary that the activity be for the purpose of financial gain or benefit.".... Moreover, courts have held that "[f]inancial benefit exists where the availability of infringing material 'acts as a "draw" for customers.'" ... It appears that Puerto 80's revenue and profitability are directly dependent upon increases in user base and enhanced Internet traffic to the website. Thus, even if Puerto 80 does not directly profit by receiving payment from the sites to which it links that stream the content, in at least some sense, Puerto 80 apparently benefits financially from making available copyright protected works on the Rojadirecta website.

So there you have it, in the government's own words. If you have any ads on your website, they can claim that the embed "acts as a draw," and they've got enough to prove financial gain. It apparently doesn't matter if you earn pennies from it, or if the money that comes in doesn't even cover your basic costs:

the Government's investigation has revealed that the CEO of Puerto 80, the owner of the Rojadirecta Domain Names, has in fact received thousands of dollars since at least October 2005 from Google AdSense, a free program that allows website publishers to earn revenue by displaying advertisements that are likely to be relevant and of interest to users of those websites.

Okay, so let's start at October 2005, and the domain was seized on February 1, 2011. By my count, that's 73 months. Note, carefully, that they claim "thousands" of dollars earned from AdSense. Not even "tens of thousands" of dollars. At most, then, they seem to be saying he earned $19,999 (though, I would imagine they'd round up in that case). But to give the government the benefit of the doubt here, let's take that number as the absolute maximum. That would mean, at a maximum, Rojadirecta earned a whopping $273.96 per month. For a popular website. I can tell you from first hand experience (and Techdirt gets less traffic than Rojadirecta) that it costs a hell of a lot more than that in basic bandwidth costs to run a site that gets this kind of traffic.

To claim that this is "financial gain," is laughable. But, apparently it's good enough for the feds in this case. And the government's own filing clearly supports my claims -- which supporters of the bill claimed were laughable -- that the government can and will claim that any advertising, no matter how little, represents financial and personal gain. Financial gain? Check.

Okay. Involving 10 or more performances in 180 days. While I'm sure some videos don't get that many, this is not a high threshold to reach -- especially if the feds themselves view the embeds a couple times. 10+ performances? Check.

Finally, that cause more than $2,500 in loss to the rights holder, again this is incredibly easy to show. Given the industry's history of massively exaggerating its "losses," combined with the feds seeming willingness to completely take the industry's word on such losses, does anyone legitimately believe that the feds won't have an easy claim of $2,500 in "loss" to the rightsholder, should they wish to go after someone? $2,500 loss? Check.

So, there you have it. Using the Justice Department's own words, it's not difficult to see how S.978 can be abused to go after a very large number of people who embed a YouTube video that includes some infringing content (which can include an awful lot of videos).

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MPAA Directly Lobbies Law Enforcement To Be Its Own Private Police Force

Mike Masnick — Wed, 22 Jun 2011 10:30:00 PDT

For years, we've discussed how questionable it is that federal law enforcement, including the Justice Department and Homeland Security, often acts as the private police force of the entertainment industry. At times there's been a bit of a revolving door, with the RIAA/MPAA hiring former federal law enforcement officials to head up their "anti-piracy" efforts, and the existing federal groups sometimes seem to return the favor by taking on cases that clearly should be civil matters between the private companies in the entertainment business and those it feels infringed on their rights.

Over the last few years, the fact that the feds have effectively been working as the entertainment industry's private police force has grown more and more obvious. No one from Homeland Security seems willing to explain (and trust me, I've asked multiple times) why it is that when ICE did its domain seizures, it relied solely on claims from the industry and (even more ridiculous) announced the first round of seizures from Disney headquarters. Can you imagine how people would react if the FTC announced it was filing antitrust charges against Google... from Microsoft's offices? Or if the FCC announced it was blocking the AT&T-T-Mobile merger from Sprint's offices? Such scenarios seem preposterous, but ICE doesn't seem to recognize the clear conflict of interest in acting as the private police force for an industry, rather than actually doing its job.

Perhaps part of that is because the entertainment industry is spending a ton of money lobbying law enforcement agencies directly. Most of the time when you think about lobbying activities, you think about talking to politicians to try to get them to pass certain laws, or talking to regulators to have them adjust or change certain rules and regulations. You don't tend to think of lobbying law enforcement directly in order to convince them to do your private bidding. But, the MPAA does.

According to a disclosure report, the MPAA spent $400,000 lobbying a wide range of US government departments in the first quarter of 2011 including the FBI, Department of Justice, Department of Homeland Security, ICE and the Vice President’s Office. Issues on the table include so-called “rogue sites” including RapidShare, streaming, graduated response (3 strikes) and domain seizures.

There are no real surprises in the content covered. It's the same stuff the MPAA has been pushing for a while now. But the fact that they're directly lobbying the FBI, the Justice Department, Homeland Security and ICE should raise some eyebrows. Law enforcement should not be influenced by the desires of private companies -- especially ones with a long history of failing to adapt to changing technologies and trying to get those technologies declared illegal. Imagine if, rather than a civil lawsuit, when the VCR was introduced, the movie industry could have just had the FBI declare the things illegal?

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Dutch Publishing Organization Says Filesharing Should Be A Criminal Offense

Bas Grasmayer — Fri, 15 Apr 2011 12:59:27 PDT

Even though The Netherlands' plans for copyright enforcement are quite far reaching, the Dutch Publisher Association, which includes about 90% of Dutch publishers among its members, says it does not go far enough, and is now asking for criminal prosecution of filesharers. The Association also claims that the new policy justifies sanctions against downloaders, such as fines, "if only for the preventive effect." What stands out, is that the Association also wants equal rules for "paper and digital copies," which could possibly equate counterfeiting to filesharing. To top things off, the statement also opposes the state secretary's plans for introducing a fair use policy in The Netherlands.

While much of the response is predictable and needs no further discussion on my part (comments are open, discuss away!), I would like to highlight again the fact that they're arguing for bringing filesharers to criminal, instead of civil, courts. This, in my opinion, clearly displays the way current copyright law and its developments clash with certain civil rights (and perhaps human rights). This is not the first time such a measure has been suggested and it will not be the last time; the lobbies and the companies they represent are rapidly draining money. Making this a matter of criminal prosecution instead of civil suits would mean that these lawsuits would rapidly decrease in cost for the industry -- but puts that cost on the taxpayer. This burdens the overall government and taxpayer, but enables organizations to continue their fight against the internet, third party innovation and the loss of control.

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ICE Arrests Operator Of Seized Domain; Charges Him With Criminal Copyright Infringement

Mike Masnick — Fri, 4 Mar 2011 08:46:56 PST

While Homeland Security's Immigration and Customs Enforcement (ICE) group has been seizing lots of domains under questionable legal theories, it has been slow to follow through on any sort of actual lawsuits. However, with one of the domains seized a month ago, channelsurfing.net, ICE has now arrested someone and charged him with criminal copyright infringement, such that he's now facing five years in jail (as well as fines). This is interesting, because when that domain was seized, we had noted that channelsurfing did not appear to host any content itself, but merely embedded content from other sites. That raises an awful lot of serious questions: specifically, what part of copyright law is infringed here. The site does not host any of the content. It does not make any copies. It does not distribute the content. All it does is put in a snippet of code that a user's web browser then uses to request content from another site.

About the only thing that could be claimed is some sort of "inducement" claim -- but as we discussed recently, there's simply no such thing as criminal contributory infringement, so if that's the claim, then it would appear that ICE (yet again) is simply making up what it wants the law to be, rather than what the law actually says. Now, there may be more to this than has been made clear to date. Perhaps there's evidence that the site actually did host content, but that was not clear from what I saw earlier. Some have said that there's an "aiding and abetting" charge to be made under criminal law, but as we pointed out in the link above, the standard for aiding and abetting are much, much higher, and there's little evidence that ICE has enough to meet the aiding and abetting standard.

On top of this, there are serious questions about why this should be a criminal claim, rather than a civil claim. ICE appears to be using the fact that the guy, Bryan McCarthy, made some money, from ads on the website, as the basis for the criminal charges. But that seems like a stretch (at best). While we still question why there should even be such a thing as criminal copyright infringement, even if we accept the idea that it does exist, isn't it supposed to be focused on those doing significant behavior where the connection between the infringement and the money making is clear and direct? Putting some ads on a website that earn a small amount of money (as is the case here) shouldn't be enough to trigger criminal infringement claims. Anyone can put ads on a website. That, alone, shouldn't shift liability from civil to criminal.

No matter what, this will represent a lawsuit worth watching. I'm always nervous that tough cases make bad law, and I could definitely see how certain aspects of this case could obscure the key issues. It will come as a surprise to no one that I'm greatly troubled by a criminal charge here, but it should worry almost anyone who has a website and has ever embedded videos. I have, for example, frequently embedded YouTube videos on this site -- and some of those videos might have been infringing. On top of that, I make some money from advertising on this site. Does that mean I now face criminal liability? I certainly hope not, but that seems to be the incredibly chilling message that ICE is sending. It immediately makes me question if I can ever embed another video without first getting explicit permission from the copyright holder.

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Dutch Court Dismisses Criminal Charges Against P2P Index Site, Noting Law Enforcement Relied Too Much On Anti-Piracy Group

Mike Masnick — Mon, 27 Dec 2010 02:11:18 PST

We've certainly voiced our concerns over the US government's growing involvement in copyright infringement lawsuits that really should be civil matters between copyright holders and those they accuse of infringement. However, with our government often believing just about anything Hollywood tells them, and with a long term effort by the industry to have the government act as its own private police force, we're seeing things like the totally botched seizure of domain names of blogs and forums on a questionable basis. It seems that the US is not the only country with this sort of problem. Earlier this year, we noted that a court in the Netherlands was questioning why it appeared that Dutch law enforcement had totally outsourced its investigations to the industry "anti-piracy" group BREIN (who, we had noted, in the past somehow ended up keeping evidence) that should not be allowed to be done by private parties.

Well, in that case, against an indexing site called ShareConnector, the court has dismissed the case over the "faulty evidence," specifically having to do with law enforcement relying way too much on industry sources, rather than doing the real investigation themselves. This follows on an earlier criminal case where the operator of ShareConnector had all charges dismissed as well.

Once again, all this highlights is how these issues are not as clear cut as the industry and its supporters often make out. It's getting rather silly how often we hear people insist that this or that service or software are "obviously" infringing on copyrights -- and no case should even be heard before they're shut down/seized/thrown in jail/fined whatever. Copyright is not a black or white situation -- there's an awful lot of gray and it should be determined in a court of law, rather than just on the say so of certain industries who benefit from shutting down alternative means of distribution that interfere with their ability to be a gatekeeper.

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How ACTA Turns Private, Non-Commercial File Sharing Into 'Commercial Scale' Criminal Infringement

Mike Masnick — Mon, 11 Oct 2010 08:42:49 PDT

We've already discussed some of the problems of the "near-finalized" draft of ACTA, but the deeper people dig into the agreement, the worse it gets. We had noted, in our original post, that the definition of "commercial scale" matters a lot, and Glyn Moody points us to an analysis that shows how the ACTA negotiators cleverly scaled back their definition of "commercial scale," to make it both vague and incredibly broad. The current text in ACTA reads:

ACTA 2.14.1: "Each Party shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright or related rights piracy on a commercial scale. [ACTA footnote 9]

For the purposes of this section, acts carried out on a commercial scale include at least those carried out as commercial activities for direct or indirect economic or commercial advantage."

"Carried out as commercial activities for direct or indirect economic or commercial advantage." Could you be any more inclusive than that? We've recently discussed how the borderline between commercial and non-commercial use can sometimes be very difficult to distinguish. Under ACTA, it appears that when in doubt, it's commercial scale.

Of course, what's really troubling here is that the EU negotiators had already promised that there would be no definition of "commercial scale." Yet, there is... and it's a lot worse than what the EU Parliament had already determined "commercial scale" to cover. The analysis linked above, first looks at the Max Planck Institute's analysis of "commercial scale" infringement, where it notes that just saying "commercial scale" "fails to provide for an appropriate and sufficiently precise definition of the elements of a crime" under the current laws of the EU. Instead, it says such actions can only qualify as a crime if the following conditions are met:

Identity with the infringed object of protection (the infringing item emulates the characteristic elements of a protected product or distinctive sign in an unmodified fashion [construction, assembly, etc.]).
Commercial activity with an intention to earn a profit.
Intent or contingent intent (dolus eventualis) with regard to the existence of the infringed right.

Note that none of that is found within the ACTA definition. The report also highlights the EU Parliament's own definition of commercial scale, which has important caveats not found in ACTA:

"infringements on a commercial scale" means any infringement of an intellectual property right committed to obtain a commercial advantage; this excludes acts carried out by private users for personal and not-for-profit purposes

Notice how the ACTA negotiators conveniently left out the exclusion at the end. So for all the talk of how the new ACTA would only focus on "commercial scale" infringement, by subtly changing (mostly via omission) the definition of "commercial scale," ACTA now covers an awful lot that most people would not, in fact, consider to be "commercial scale." We'll leave it as an exercise to the reader whether these omissions were done through incompetence or for other reasons.

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Bank Robber Outs Himself After He Fact Checks Local News Reports On His Crimes

Mike Masnick — Thu, 19 Aug 2010 23:41:25 PDT

You know what they always say: when there's a news article written about you, the facts are always wrong. Of course, in most cases, that's bad, and the fact checking you try to do afterwards is a bit useless. However, in some cases, you would think it would be good. Such as if you were a bank robber, and they had the description about you all wrong. Unfortunately, vanity sometimes gets the better of some people, and apparently a bank robber in Germany contacted the press and the police to correct the "errors" in their reporting on the crime, noting that they got "his age, height, mode of escape and accent wrong." Of course, emailing that info made it easy to track him down, and a few hours later he was in custody. Perhaps that's the trick in capturing overly vain bank robbers. Just get them to do their own fact checking by inserting errors into the police reports...

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Dutch Court Questioning Why Police Outsourced File Sharing Evidence Collection To Industry Group

Mike Masnick — Fri, 2 Jul 2010 04:17:19 PDT

We've seen numerous bad court rulings in the Netherlands when it comes to attacks on file sharing programs, and one of the big concerns was the seemingly all-too-close relationship between the anti-piracy organization BREIN and Dutch law enforcement. For example, it's still unclear how BREIN ended up with computer equipment from some of these file sharing operations. Police can confiscate equipment. Private industry groups cannot. It seems that relationship may now be creating some problems for BREIN, as a court is questioning why Dutch law enforcement brought criminal charges against a file sharing site, when it was clearly a civil issue that should have been taken up by BREIN.

The specific case involves a lawsuit that was brought years back, where the owner of the site ShareConnector was eventually cleared on all charges. However, more recently, the Danish Department of Justice decided to appeal. However, TorrentFreak notes that the court has adjourned the case to ask why it's a criminal matter, and why, if it's a criminal matter, is BREIN so involved:

The Court wants the prosecutor to explain why the Department of Justice decided to go through with criminal proceedings in a case where a civil one would seem to be more suited. In The Netherlands copyright infringement related offenses fall under civil law unless they are very severe, which doesn't seem to be the case here.

In addition, the Court weighs in that the evidence in this case has been collected by the Dutch anti-piracy outfit BREIN instead of the local authorities.

Perhaps BREIN and Dutch law enforcement groups will be reminded that BREIN is not, in fact, part of law enforcement, but a private industry group.

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Do We Really Want To Criminalize Bad Jokes?

Mike Masnick — Wed, 12 May 2010 10:18:32 PDT

Back in January, we wrote about the story of a guy in the UK who was arrested and banned from his local airport after making a (bad) joke on Twitter about blowing the place up. His tweet was:

"Robin Hood airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!"

As we said at the time, it was a really dumb statement, and I have no problem with police checking it out, but once they realized it was just a dumb joke, it seems reasonable to leave the guy alone. However, some more details are now coming to light that make the story even more questionable, and raise some issues that could impact pretty much anyone who makes a bad joke on Twitter, should someone in power want to cause them serious trouble.

Andrew sent over a few more articles about the story, that highlight that the guy wasn't actually charged for making a fake bomb threat. There actually is a law for that... but the authorities didn't charge him with that because they knew that his joke would never actually be seen as a bomb threat. Charging him under that law would require evidence that he intended to make people actually think he was intending to blow the airport up -- but no reasonable person would think that.

Instead, it appears that the police used a little-known part of the UK's Communications Act that outlaws sending a "message that was grossly offensive or of an indecent, obscene or menacing character." Sound broad enough? Yeah. Suddenly, you realize he wasn't charged with making a bomb threat. He was charged with making a bad joke, that someone misinterpreted as being "menacing." The link above to TheLawyer.com goes through all this in great detail, including a pretty scary discussion with the officials who decided which law to charge the guy with, where they basically dance around the issue, even though it's pointed out to them that they're clearly stretching the meaning of that particular law well beyond what it's supposed to cover, while ignoring the actual law concerning bomb threats.

No matter, it appears that the guy has now been officially found guilty and fined £385 plus £600 costs (though, Stephen Fry has offered to pay). The fine isn't huge, but the guy now has a criminal conviction on his record for making a bad joke (not for making a bomb threat). That doesn't seem reasonable no matter how you look at it.

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Once Again, A Court Overturns Internet Ban For Convicted Criminal

Mike Masnick — Mon, 5 Apr 2010 10:52:00 PDT

For nearly a decade now, we've been questioning the wisdom of punishing a criminal who used the internet as part of their crime, with a ban from internet access. With the internet becoming so integral to everyday activity, it almost seems impossible to ban them from getting on the internet at all. Does it mean they can't use a smartphone (or even a featurephone)? Can they not use VoIP? It really makes very little sense. Thankfully, it seems like most of these bans get overturned. All the way back in 2002, we wrote about a court overturning such a ban, saying that it was an "unfair encroachment on his liberties." In 2007, a similar ban was overturned. Earlier this year, another such ban was overturned as being a restriction on the guy's free speech.

And yet, the courts seem to keep giving out these bans. So, yet again, we have a story of a 30 year computer ban being overturned. And again, the court found that such a ban seems to go way too far. In this case, it was deemed "substantively unreasonable" and "aggressively interferes with the goal of rehabilitation."

So, at what point do judges stop giving out these kinds of bans in the first place?

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EU Proposes Criminalizing Inducing Infringement In ACTA Draft; Could Outlaw Google

Mike Masnick — Thu, 18 Mar 2010 09:33:00 PDT

While the EU Parliament has decisively denounced ACTA -- both in terms of the process and the substance of the (still secret) draft agreement, it appears that the EU negotiators are still pushing to include draconian provisions in ACTA. KEI has discovered that the EU is proposing to make inducement a criminal offense, rather than just a civil one:

KEI has learned that the European Union has proposed language in the ACTA negotiations to require criminal penalties for "inciting, aiding and abetting" certain offenses, including "at least in cases of willful trademark counterfeiting and copyright or related rights piracy on a commercial scale."

Of course, definitions matter here. In this case, the question is what constitutes "rights piracy on a commercial scale." Beyond the troubling notion that these negotiators are using such an inaccurate and imprecise word as "piracy" in such a big agreement, the commercial scale definition is quite broad:

"significant willful copyright or related rights infringements that have no direct or indirect motivation of financial gain"

Consider this the "let's criminalize The Pirate Bay" clause. Of course, it could also be read as the "let's criminalize the VCR clause" as well -- which is why this is so troubling. It's one thing to add civil penalties and liability to third parties through some sort of misguided secondary liability policy -- but it's really pushing to dangerous extremes to add criminal liability to that as well.

Now, let's look at the potential unintended consequences of such language. It effectively could outlaw Google. Google, without a doubt, can be used to "aid" or "abet" "copyright... piracy on a commercial scale... that have no direct or indirect motivation of financial gain. Now, those in support of this bill will quickly insist that no one is going to use it to shut down Google. And they're probably right, given Google's brand recognition. But the fear is that they would almost certainly use this to shut down the next Google-like company before it had a chance to get very big. This is what happens when you have technologically, economically clueless bureaucrats trying to protect a dying industry. You get bad regulations that have massively dangerous unintended consequences.

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Halt...In The Name Of The MPAA/RIAA/FBI/NSA! [Updated: Hoax]

Mike Masnick — Wed, 20 Jan 2010 15:13:27 PST

See update below. GeneralEmergency writes "I was performing a Google search on the phrase "this website has been closed" recently, and the sixteenth result was a link to http://vxbinaca.beevomit.org/party_van/ where you get treated to the following (which you may want to read before clicking):
"This website has been closed by the United States Federal Bureau of Investigation, in association with the United States National Security Agency, the Motion Picture Association of America, and the Recording Industry Association of America; pending a federal investigation.

Your visit to this URL has been logged. Please stay where you are. You will be contacted for questioning regarding the investigations related to this website. Any attempt to evade questioning will be considered obstruction of justice, and is subject to fines and imprisonment, pursuant to 18USC1510(a).

The owner(s) of this site will no longer be available for comment. For inquiries or if you wish to assist in this investigation, please contact:

Federal Bureau of Investigation
Attention: Internet Investigation Unit
935 Pennsylvania Avenue, NW, Room 7350
Washington, DC 20535

(202) 324-3000

iiu@fbi.gov"
My first thought was, "OK....Ummm...Wait for how long? I was really thinking about going to Lowes this afternoon for a new tube of Loctite."

But the more I thought about this apparent method of "Honey Pot Trap" investigation, assuming it is genuine, the more silly this seems. If they were serious about this site being an investigatory tool, you would think that they would have the basic internet common sense to use a robots.txt file to keep Google (and other polite netizens) from indexing the site. Moreover, it only takes one guy like me to stumble across a site like this, post it's URL elsewhere obfuscated as a TinyURL, and their little honeypot get overrun with ants!

If the F.B.I. is not serious about this method as an investigation tool, then why put up silly threats like this?

You can also find plenty of other sites that Google says contain the text string "This website has been closed by the United States Federal Bureau of Investigation."

Guess I'm in big trouble now! I'll let you know if any suits show up on my doorstep!"

I actually don't believe this is a honey pot at all. Just a bogus threat tactic. It's the same message that goes up on every file sharing site that eventually gets taken down. Four years ago, we wrote about the same message on the front of Grokster's site. It's a blatant (and bogus) scare tactic, and pretty ridiculous as well. It is a bit silly that (1) the FBI and NSA allow their names to be posted with the RIAA and MPAA (2) that they imply just visiting the site is somehow illegal and worthy of being logged followed by a "visit" and (3) that they somehow think this is effective. Update: As pointed out in the comments, the particular site singled out above is a hoax... but really isn't all that different from the site that actually did go up on the Grokster page...

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Italian Prosecutors Assume Google Execs Read All YouTube Comments; Demands Jailtime Over Video

Mike Masnick — Mon, 30 Nov 2009 09:10:00 PST

We've been absolutely stunned by the Italian attempt to prosecute Google execs over a YouTube video. If you don't recall the story, apparently some schoolboys taunted a disabled boy by throwing a tissue box at him. They filmed the entire ordeal and posted it to YouTube. Because of the video, the kids in the video were actually held liable for the taunting. It actually helped bring those kids to justice. Meanwhile, Google took down the video as soon as they were alerted to it by the authorities (within a couple hours of finding out about it). But Italian prosecutors insist not only that Google should have blocked the video entirely, but the fact that they left it up means that its execs are guilty of criminal violations and deserve jailtime.

In pressing the case forward, prosecutors are claiming that Google must have known about the nature of the video because there were comments on the YouTube video expressing disgust over the video. It's as if they believe that Google execs read all the comments posted to YouTube and use those to pick and choose which videos should stay up and which should be taken down.

In the meantime, I'm still wondering why Italian prosecutors are not trying to push the tissue manufacturer in jail as well, as I would argue that those who made the package of tissues thrown at the boy are at least as, if not more, responsible for the actions of those kids as Google.

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Police Allowed To Hang Onto Seized Computers For Anti-Piracy Group, Despite No Gov't Prosecution

Mike Masnick — Fri, 13 Nov 2009 05:38:00 PST

We were just noting that the IFPI thinks it's going to start seizing computers directly to get evidence of unauthorized file sharing, and wondering how that would work. At least in the UK, they may have just received some legal support. Over the summer, we wondered why an anti-piracy group in the UK was given access to and allowed to keep computers from a criminal investigation into an online service, called Surfthechannel, accused of unauthorized file sharing. The police seized the computers, but decided not to pursue criminal charges. It never made much sense that private, industry-backed anti-piracy group FACT was a major part of the criminal investigation, as they're quite the biased party. They were given seized computers as a part of this investigation -- and once the police decided not to pursue criminal charges, FACT kept the machines, saying it was considering a civil suit. However, the lawyers for Surfthechannel noted that the police and FACT had no right to keep the seized machines after the decision was made not to pursue criminal charges.

Apparently (and unfortunately) a judge disagrees. A reader alerts us (via comments on a totally separate story, rather than a submission -- not sure why) to the news that the judge in the case has said that police have every right to retain seized computers, even after they've decided not to pursue criminal charges. The judges noted that the law allows police the retain anything seized "so long as is necessary in all the circumstances" and then ruled that the potential of a civil suit from FACT was one of those "circumstances" that qualified. It's difficult to see how that makes any sense, but so ruled the court.

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Now Google's Facing A Criminal Investigation In Germany Over Copyrights On YouTube

Mike Masnick — Mon, 26 Oct 2009 18:49:16 PDT

Hopefully, this leads nowhere, but NewTeeVee reports that an angry entertainment lawyer in Germany has filed a criminal complaint against YouTube for music from 25 musicians he represents. The complaint is that Google hasn't taken down the videos and hasn't allowed those artists access to the Content ID program that Google uses to try to block copyrighted works. It's not clear why these artists weren't allowed in. Google seems to deny the whole thing. Either way, it's not at all clear why this should be a criminal investigation rather than a civil lawsuit, as that's all there is (at best) here. There's apparently a half decent chance that German officials will eventually decide that as well, telling the lawyer to file a civil suit instead, but just the fact that a criminal investigation has begun is troubling enough.

Meanwhile, part of the complaint is that this lawyer wants to find out who uploaded the videos, presumably to sue them too, because we all know what works great these days for musicians is to sue their biggest fans, who are out there trying to help promote the musicians they love....

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UK Inventor To Lord Mandelson: Make Patent Infringement A Criminal Offense

Mike Masnick — Wed, 2 Sep 2009 13:42:00 PDT

A whole bunch of folks have been sending in the story of how UK inventor Trevor Baylis has written a letter to UK Business Secretary (and sudden fan of kicking people off the internet), urging him to change patent law to make it a criminal offense, using the same old tactic: comparing an "invention" to real property, and noting that stealing a car will get you jail time -- so why doesn't "nicking" a patent? Well, Mr. Baylis, it doesn't get you jail time for a whole host of very good reasons: when someone steals your car, you no longer have your car. If someone happens to come up with the same invention as you do, both of you still have it. Plus, note in that last sentence that patent infringement rarely involves actual "stealing" or "nicking" of ideas, but usually is about multiple people coming up with the same general idea at the same time. Doesn't it seem slightly problematic to think that you might go to jail if someone else just happened to come up with the same invention you did, but got to the patent office a day earlier? Hopefully, Mandelson will explain this sort of thing to Mr. Baylis, but given his confusion over copyright... that seems unlikely.

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Criminal Prosecution For Domain Hijacking

Mike Masnick — Tue, 4 Aug 2009 20:20:00 PDT

There have been tons of stories over the years of domain names being hijacked. The famous Sex.com saga goes back more than a decade, and involves accusations of a "stolen" domain. However, as a bunch of folks have sent in, for what appears to be the first time, someone has been arrested and criminally charged in such a situation (usually the disputes are handled through civil suits or arbitrators). In this case, it did, in fact, start as a civil suit, back in 2007 (attempts at the time to get police involved went nowhere). However, as new evidence came to light, criminal charges were just recently added, as well. The article linked above is chock full of detailed info on the case, including a good explanation of why these disputes almost never involve criminal charges. Oh, and as an odd side note, apparently the guy who "purchased" the domain from the guy who allegedly hijacked it, is professional NBA basketball player, Mark Madsen, who, when not playing center for the LA Clippers, has a side hobby of domain name speculation. Who knew?

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Thin Skin: SMS Political Jokes In Pakistan Can Get You 14 Years In Jail

Mike Masnick — Tue, 21 Jul 2009 14:41:00 PDT

It would appear that the typical late-night TV comedian in the US would face serious jailtime in Pakistan, were he based there. MK alerts us that President Asif Ali Zardari of Pakistan is so annoyed by people passing around jokes about him via SMS that the gov't has started threatening to charge people for passing around such jokes, as "slandering the political leadership of the country" under a vaguely worded Cyber Crimes law, that could lead to 14 years in jail. It seems that should only lead to more jokes. How does one get to be a political leader with such a thin skin?

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