First, it raises a question of fundamental fairness about the appropriateness of punishing an unrelated group for circumstances beyond their control. U.S. copyright owners have found themselves chips in a high-stakes international game with no recourse. In addition, TRIPs obligations implicate many downstream stakeholders -- distributors and licensees, for example -- who rely on stable IP rights to function, so suspension of these obligations would affect many individuals and companies in other sectors and even other countries.

Second, application in this situation seems to run counter to the purpose of cross-retaliation. Since the 1990s, Antigua has set itself up as a safe haven for offshore gambling. Licensing of gambling services make up a significant portion of the country’s revenues. Cross-retaliation as a remedy is, in theory, supposed to provide leverage to smaller, less-developed countries in trade disputes against larger nations. But the Antigua gambling industry is composed of large, international corporations.

The case began in February 2011, when Stuart says he and his wife got the Kim Dotcom treatment after about 30 local Arizona law enforcement agents wearing SWAT gear and camouflage dress — some of them with bushes attached to their shoulders to blend into the woods around his house — descended on his home and threatened to send him and his wife to prison for 35 years if he didn’t cooperate.

The search warrant used in the raid said Stuart and his wife were engaged in money laundering, operating an illegal enterprise and engaging in the promotion of gambling. Stuart has tried to obtain a copy of the affidavit used to get the search warrant, but it’s currently sealed.

Although Daniel R. Alonso, chief assistant in the Manhattan District Attorney’s Office, was reluctant to discuss the terms of the confidential plea agreement or how his office planned to implement them, he insisted there was nothing unlawful about what was proposed.

“The provision you have questioned is perfectly consistent with the obligations of all law enforcement officials to follow state and federal law to secure evidence of criminal conduct,” Alonso said in an e-mail statement. “The staff of the Manhattan District Attorney’s office involved in this case, both prosecutors and investigators, have behaved ethically and consistent with their obligation to seek justice in every case.”

The page you are trying to browse to is categorized as "Gambling"

If you believe you are getting this message by mistake, try contacting your administrator or Helpdesk.

Technical Information (for support personnel)

Error Code: 403 Forbidden. Forefront TMG denied the specified Uniform Resource Locator (URL). (12233)
IP Address: [IP Redacted]
Date: 6/14/2012 6:31:39 PM [GMT]
Server: [server name redacted]
Source: proxy

Of course, this reasoning also applies in those jurisdictions where ISPs have been forced to censor sites. This emphasizes the contradictory rules that are being applied across the EU, and the fact that the law in this area is by no means settled.

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The court's opinion makes it clear that expansive anti-gambling laws leave almost no room for entrepreneurial yet legal Internet gambling enterprises. Here, Betcha is tripped up by the definition of "bookmaking," defined as "accepting bets, upon the outcome of future contingent events, as a business or in which the bettor is charged a fee or "vigorish" for the opportunity to place a bet." This strikes at Betcha's model of charging the parties to communicate with each other regarding betting. The court is not swayed by Betcha's formalist argument that because the loser could renege on the bet, the wager did not meet the statutory definitions for gambling. The court says the bookmaking definition applies whether the bets are made for money or not.

"Instead of owners, operators, or registrants of the website domain names, the lawyers opposing the Commonwealth claimed to represent two types of entities: (1) the domain names themselves and (2) gaming trade association who profess to include as members registrants of the seized domains, though they have yet to reveal any of their identities."

The court even acknowledged that the lawyers on behalf of the associations made "numerous, compelling arguments endorsing the grant of the writ of prohibition," but that "(a)lthough all such arguments may have merit, none can even be considered unless presented by a party with standing."

"Accordingly, there is nothing risked, which is the essence of both the common law and statutory definition of 'gambling.'"