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

from the is-there-secondary-criminal-infringement? dept

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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Comments on “ICE Arrests Operator Of Seized Domain; Charges Him With Criminal Copyright Infringement”

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Marcus Carab (profile) says:

Question for those with specific legal knowledge (and a pure hypothetical since I don’t know the details yet):

What if they can somehow prove that the guy running the site was also the one uploading the material to the third party streaming services? That seems to be how a lot of TV linking sites operate.

Obviously the act of uploading the material would make him liable for a DMCA takedown followed by a lawsuit if he filed a counter-notice. And the aggregating and linking/embedding is not in itself infringement (and certainly not criminal infringement.) But if it is demonstrable that the same person is doing both, I can see how that might change the nature of the situation under the law – I’m just not sure how exactly. Thoughts?

Marcus Carab (profile) says:

Re: Re: Re:

There’s a reason I said “seems” – I’m not sure at all. But I do admit to using such sites, and my perception has been that there must be some sort of connection between the linking sites and the uploaders – everything seems to operate too quickly and cleanly for it to be an organic system. New episodes of TV shows are available within minutes, and links that get DMCA’d are replaced even faster.

Now like I said, I could be wrong – it’s just my impression. I’m just curious to know how this would play into the legal aspect of it, and if it is something they are going to be trying to prove in court.

Anonymous Coward says:

We did it! We finally did it! We got the pirate mastermind and it’s about time. I am so happy right now, floating on clouds, finally, piracy has ended. It was a tough ride but it just goes to show, if you have some patience, in the end, the law will ultimately save all the artists.

That should do it, right? I mean, if this doesn’t stop pirating I just don’t know what will.

Anonymous Coward says:

Re: errrr

Do you want piracy so bad you are willing to kill the internet to get it?

The guy was making money distributing copyright material. It’s not hard to follow.

What I find amusing in all of this is that it sort of puts a major hole in all the people (Mike including) whining about “seizing domains for no reason”. Clearly, they were headed somewhere with the action.

Enjoy the results.

Anonymous Coward says:

Re: Re: errrr

This guy allegedly made AT LEAST $90K in five years through his ads. Mike refers to this as a, “small amount of money (as is the case here).” LOL! Yeah, right! $90K is just a few pennies.

That’s all beside the point though, since he can be charged based on the value of the works he infringed or assisted others to infringe. The amount he took in from ads doesn’t really matter if the value of the works infringed are great–which apparently they are here.

The eejit (profile) says:

Re: Re: Re: errrr

It is, if you think about it. That’s barely minimum wage. And if it wasn’t valued at $100/PPV event, perhaps a lot MORE people would watch it. Again, the fact that they’re charging him with direct criminal copyright infringement AND aiding and abetting makes fuck-all sense. IT’s like hammering in a nail with a pneumatic drill.

Gwiz (profile) says:

Re: Re: Re: errrr

This guy allegedly made AT LEAST $90K in five years through his ads. Mike refers to this as a, “small amount of money (as is the case here).” LOL! Yeah, right! $90K is just a few pennies.

You make it sound like it was a ton of cash there, boss.

Even you must realize that his actual profit would be much less when you include in server maintenance, upkeep, bandwidth and overhead costs in there.

It’s kind of funny, when talking about the price of a song: We MUST consider things like distribution costs and corporation overhead, but when talking about dirty rotten pirates: The only important figure is the gross income.

Anonymous Coward says:

Re: Re: Re:2 errrr

I don’t think it’s “tons of cash.” But it’s certainly more than a “small amount of money.”

As I read the statute, it’s the “retail value” of the works infringed that matters, not the “distribution costs and corporate overhead” as you suggest. Those costs are built in to the retail value already, no?

Gwiz (profile) says:

Re: Re: Re:3 errrr

I don’t think it’s “tons of cash.” But it’s certainly more than a “small amount of money.”

And my point was that his profits are actually much less than the $90K you quoted.

As I read the statute, it’s the “retail value” of the works infringed that matters, not the “distribution costs and corporate overhead” as you suggest. Those costs are built in to the retail value already, no?

And it still strikes me a odd that when asked why the industry cannot sell a song for $0.20 – the response is along the lines of “My God are you crazy man? That won’t even cover the label’s overhead and the artist will starve – do you want the artist to starve?”

But, on the other side of the coin, when it concerns someone else profiting on alleged piracy it’s: “He made $90K!” without even considering what his actual profit is after expenses.

Anonymous Coward says:

Re: Re: Re:4 errrr

Legally it doesn’t matter. It is a question of value, not income. The only legal question is one of commercial income (not profit) from the venture.

While not relevant, his actually costs are likely very low, considering he wasn’t feeding those streams from his own server. I suspect he could have run it on a $100 a month server package.

Anonymous Coward says:

Re: Re: Re:4 errrr

In the 2002 case of United States v. Kah Choon Chay, Chay was busted for selling counterfeit video games, plead guilty and promised restitution to the copyright holders. The lower court calculated that restitution to be ~$50k, based on his gross sales. Chay objected, saying it should be based on his net profit [less production/distribution costs], and the court shut him down with the following reasoning: if you steal my watch and sell it, you don’t pay me what you earned from the sale, you pay me the value of the watch. The appellate court upheld the lower court’s award, noting that restitution is designed to compensate the victim for the harm suffered because of defendant’s criminal conduct, so we calculate by the victims’ losses, not the criminal’s gains.

JEDIDIAH says:

Re: Re: ...not quite.

This guy was distributing NOTHING.

He was publishing a search index/engine.

He was like a little highly specialized Google.

In truth, he was providing a proverbial “map and a flashlight” to anyone that wanted to find stuff. This could be “evil pirates” or law enforcement. If anyone with any brains was in charge here, they would have used this search index to shut down the primary infringers.

“contributory infringement” is a dubious thing bound to lead to all sorts of nasty “unintended” consequences.

Anonymous Coward says:

According to the docket (1:11-mj-00521-UA, USA v. McCarthy, SDNY): “COMPLAINT as to Brian McCarthy (1) in violation of 17 U.S.C. 506; 18 U.S.C. 2319(b)(1) and 2.”

The first two, 17 U.S.C. 506 and 18 U.S.C. 2319(b)(1), are criminal copyright infringement. The third, 18 U.S.C. 2, is aiding and abetting.

I believe the court in this case will shred all of your FUD surrounding these seizures. I also believe that the court will make clear that linking sites are aiders and abettors.

I disagree that “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.” I think it’s quite easy to make a case on an accomplice theory, and that’s PURE FUD.

Your FUD about whether criminal infringement, “even if we accept the idea that it does exist,” is ridiculous. Of course it exists. It exists in those two statutes McCarthy is charged with.

What are you so “nervous” about, Mike? Worried your pirate buddies are getting busted? But I thought piracy was “not O.K.”? LOL! Whatever you say, brother.

And, good grief with the FUD about whether you “can ever embed another video without first getting explicit permission from the copyright holder.” Give me a break! You’ve got your FUD-phasers set to “super dumb” today.

Nathan F (profile) says:

Re: Re:

“The first two, 17 U.S.C. 506 and 18 U.S.C. 2319(b)(1), are criminal copyright infringement. The third, 18 U.S.C. 2, is aiding and abetting.

I believe the court in this case will shred all of your FUD surrounding these seizures. I also believe that the court will make clear that linking sites are aiders and abettors.”

So.. Google is next right? After all their search engine provides links.

Anonymous Coward says:

Re: Re: Re:2 Re:

Nope, you fail.

Someone embedding a youtube video isn’t taking any risks unless their entire site is dedicated to “illegal videos on youtube”. They have to form the intenent. This guy’s intent is to frame TV streams with his ads, and to profit from traffic of people looking for illegal feeds. It’s not hard to see the difference.

Well, it might be, especially if you are trying to be whiny.

Anonymous Coward says:

Re: Re:

We have a winner!

That raises an awful lot of serious questions: specifically, what part of copyright law is infringed here.

It doesn’t raise much Mike, because much of it comes down to intent. Playing games with technical issue (it isn’t the site, it’s the browser) is amusing, but meaningless. People came to his site in order to obtain access to copyright material illegally, he was “aiding and abetting”. He wrote the HTML, essentially directing the browsers to do X or Y. Without his help (there is that “aiding and abetting” thing again) users would not have had access to the material.

Further, without the copyright material on his site, nobody would have visited his site and caused him to have income. Thus, you have commercial copyright violation, aiding and abetting, and so on.

It’s like the legal tiddlywinks of torrent sites. You can play around with “the torrent is here” “the tracker is there” “Who’s on first”, but in the end, intent is key, especially in US law.

Remember, you can go to jail for selling someone salt, if you claim it is rock cocaine. It isn’t the drug that matters, it is your intent.

So sorry Mike, the feds are busy proving you wrong again.

Anonymous Coward says:

Re: Re: Re: Re:

Nice non sequitur. Answer me this, do you really not think he set up his website with the purpose of aiding others to infringe? What else was that website’s purpose?

Please tell me you’re not going to pretend that that intent is not likely there in this guy’s mind.

Marcus Carab (profile) says:

Re: Re: Re:4 Re:

The question may not be relevant to this specific incident, but it is still a valid question to which you have absolutely no answer, because there isn’t one. My purpose in bringing it up was just to point out that your lofty ideals like “intent is what matters” seem to be remembered and forgotten according to what works in your favour.

Marcus Carab (profile) says:

Re: Re: Re:6 Re:

I’m pointing to the DMCA anti-circumvention clause (section 1201) which makes it illegal to bypass protection mechanisms except under seven statutory exceptions which do not cover all the potential completely legal reasons to circumvent. The best example is making a personal backup of a DVD you own, which has been explicitly deemed fair use but becomes illegal if the DVD contains any sort of protection mechanism.

Anonymous Coward says:

Re: Re: Re:7 Re:

Ah, you’re confused about what the DMCA prohibits. Section 1201 does not make “it illegal to bypass protection mechanisms” as you suggest. The act of circumvention is not prohibited.

The court here explains it well:

Through the DMCA, Congress sought to prohibit certain efforts to unlawfully circumvent protective technologies, while at the same time preserving users’ rights of fair use. Some understanding of the interplay between copyright and fair use is essential to understanding the issues confronting Congress and the issues presented here. Fair use and copyright are discussed in more detail below, but in brief, copyright grants authors the exclusive right to make and distribute copies of their original works of authorship but the doctrine of fair use permits a certain amount of copying for limited purposes without infringing the copyright, notwithstanding the exclusive rights of the copyright owner.

As part of the balance Congress sought to strike in protecting the rights of copyright owners while preserving fair use, Congress enacted three new anti-circumvention prohibitions, Section 1201(a)(1), Section 1201(a)(2) and Section 1201(b). The first two provisions target circumvention of technological measures that effectively control access to a copyrighted work; the third targets circumvention of technological measures that impose limitations on the use of protected works.

With regard to the first category, Congress banned both the act of circumventing access control restrictions as well as trafficking in and marketing of devices that are primarily designed for such circumvention. Specifically, Section 1201(a)(1)(A) provides that ?[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.? Thereafter, Section 1201(a)(2) provides that:

[n]o person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

(A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title;

(B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title [17 U.S.C. ? 1 et seq.]; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title.17 U.S.C. ? 1201(a)(2).

The third prohibition, however, addresses a different circumvention, specifically, circumventing a technological measure that imposes limitations on the use of a copyrighted work, or in the words of the statute, that ?effectively protects the right of a copyright owner.? Using language quite similar to Section 1201(a)(2), the Act provides that:

[n]o person shall manufacture, import, offer to the public, provide or otherwise traffic in any technology, product, service, device, component, or part thereof, that-

(A) is primarily designed or produced for the purpose of circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title [17 U.S.C.A. ? 1 et seq.] in a work or a portion thereof;

(B) has only limited commercially significant purpose or use other than to circumvent protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof; or

(C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing protection afforded by a technological measure that effectively protects a right of a copyright owner under this title in a work or a portion thereof.

17 U.S.C. ? 1201(b). Unlike Section 1201(a), however, Congress did not ban the act of circumventing the use restrictions. Instead, Congress banned only the trafficking in and marketing of devices primarily designed to circumvent the use restriction protective technologies. Congress did not prohibit the act of circumvention because it sought to preserve the fair use rights of persons who had lawfully acquired a work. See H.R. Rep. 105-551, pt. 1, at 18 (1998); Burton Decl. Ex. N.; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 Fed.Reg. 64,557 (2000) (codified at 37 C.F.R. ? 201) (?The prohibition in section 1201(b) extends only to devices that circumvent copy control measures. The decision not to prohibit the conduct of circumventing copy controls was made, in part, because it would penalize some noninfringing conduct such as fair use.?). In fact, Congress expressly disclaimed any intent to impair any person’s rights of fair use: ?Nothing in this section shall affect rights, remedies, or defenses to copyright infringement, including fair use, under this title [17 U.S.C.A. ? 1 et seq.].? 17 U.S.C. ? 1201(c)(1). Thus, circumventing use restrictions is not unlawful, but in order to protect the rights of copyright owners while maintaining fair use, Congress banned trafficking in devices that are primarily designed for the purpose of circumventing any technological measure that ?effectively protects a right of a copyright owner,? or that have limited commercially significant purposes other than circumventing use restrictions, or that are marketed for use in circumventing the use restrictions.

United States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1119-21 (N.D. Cal. 2002)

Marcus Carab (profile) says:

Re: Re: Re:8 Re:

You seem to have ignored the 1201(a)(1) section, which is referred to at the beginning of your emphasized block:

1201(a)(1) – (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title.

Exceptions to that rule are doled out by the Librarian of Congress.

Moreover, I also fail to see why creating the necessary tools to do something completely legal (like RealDVD) should be illegal.

Marcus Carab (profile) says:

Re: Re: Re:2 Re:

No, I agree that his intent was clearly to aid people in finding infringing content. But I find it ridiculous that intent could condemn you in this situation, but can not also exonerate you in another copyright circumstance. I don’t see why the industry should be allowed to have it both ways.

If intent matters here, then the anti-circumvention clause of the DMCA should not exist.

Anonymous Coward says:

Re: Re: Re:10 Re:

I do agree. Intent + Act = Crime, generally speaking.

I think this gets to the ultimate answer to the question that was posed about intent. Generally speaking, intent is relevant in criminal matters but not in civil liability matters. This case involves criminal copyright infringement under the criminal code 18 U.S.C (sec. ?), while the DMCA is a civil law under 17 U.S.C. (sec. ?) that imposes civil (read money) rather than criminal (your freedom) liability. Because the stakes are much higher (you could be imprisoned), the statue has a higher threshold of proving intent.

Anonymous Coward says:

Re: Re: Re:

(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180?day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
(2) Evidence.? For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

Since he tried to hide his identity he can’t claim ignorance he almost certainly knew he was doing something wrong, the ad revenue is personal gain, the only way to fight this is the distribution and reproduction claims, he has a good chance in stating he was not a direct distributor or reproducer thus he didn’t infringe on the copyright owners directly, those charges probably will be thrown out, now the inducement that is tricky.

Gwiz (profile) says:

Re: Re: Re:3 Re:

Trying to act in secret is probative of a guilty mind, so it is evidence that warrants consideration.

I have no clue if this is a true legal argument or not, but my internal fairness meter screams bullshit on this one.

Acting in a secret is indicative of someone acting in secret. Period.

It’s not an indication of a guilty mind at all. Sure, a guilty person MAY act secretively, but that does not, in any way, mean a secretive person is guilty of anything other than being secretive.

Gwiz (profile) says:

Re: Re: Re:5 Re:

* sigh *

Yet, another example as to why I could never be a lawyer.

So now, in addition to what I learned earlier this week with the whole logic vs law debate on the jury nullification article where lawers need to be able disconnect thier logic circuits concerning things I always believed where Boolean relationships:

– Something can be both legal and illegal
– I can have a right, but not have that right
– I can have a power, but not be able to use it
– And if I want to exercise my power of jury nullification, I most certainly can’t talk about it

I now see that to be a lawyer one also needs the ability to disconnect their sense of fairness too.

Gwiz (profile) says:

Re: Re: Re:7 Re:

Do you really think the fact that the defendant tried to cover his tracks is not admissible at his criminal trial? I suppose you could argue that it’s prejudicial, but I don’t think you’d win that point.

I think the problem a non-lawyer sees with this is this:

Where exactly does the line between “covering one’s tracks” and “protecting one’s privacy” fall. And who exactly determines that?

Anonymous Coward says:

Re: Re: Re:8 Re:

“To me, I guess it turns on the difference between “covering one’s tracks” and mere anonymity. Shredding a document would qualify as the first, but your posting as an Anonymous Coward would qualify as the second.”

There’s a difference between covering your tracks after the fact and not leaving tracks in the first place. Shredding a document might be destroying evidence. Posting as AC is indeed an attempt to hide identity.

Anonymous Coward says:

Re: Re: Re:6 Re:

The rules of evidence allow for any *relevant* fact to be introduced at trial. The point being made above is that acting in secret is relevant to proving guilt. It absolutely does not prove guilt by itself, it is merely relevant. As pointed out above, it is also relevant to other activities like avoiding spam. But just because there is a legitimate reason for acting in secret does not prevent the prosecution from introducing the fact as evidence. The defense will introduce legitimate reasons for acting in secret, and it will be up to the jury to decide how to weigh this fact as well as any other facts relevant to guilt or innocence.

btr1701 (profile) says:

Re: Re: Intent

> but in the end, intent is key, especially in US law

Actually, in the US, criminal law is based on two elements: the intent (guilty mind or mens rea) and the prohibited act (actus reus). One without the other will not result in criminal liability.

Criminal intent without a criminal act = no crime.

Criminal act with no intent = no crime.

Both intent and act must be present. So your claim that “intent is key” isn’t really accurate. It’s only half the equation and it’s no more “key” than the other half.

Anonymous Coward says:

Re: Re: Re:2 Intent

For involuntary manslaughter, the crime is committed even though the death of the victim is only the result of gross negligence. The idea is that you’re going to punish someone criminally because they took a unjustifiable substantial risk. Even if they didn’t perceive the risk, they should have.

Not all crimes require criminal intent, but generally they do.

Jose_X (profile) says:

Re: Re: Re:

>> So sorry Mike, the feds are busy proving you wrong again.

The feds are aiding and abetting the creation of court precedent that will sink the copyright tyrants.

>> Remember, you can go to jail for selling someone salt, if you claim it is rock cocaine. It isn’t the drug that matters, it is your intent.

But can you go to jail for telling someone where to find what you think may or may not be rock cocaine or anything else for that matter and when you don’t know who that person is or what they intend to do with that information?

>> Further, without the copyright material on his site, nobody would have visited his site and caused him to have income.

What copyright material on his site? [I haven’t looked at the site, but I presume you mean the link addresses.]

>> People came to his site in order to obtain access to copyright material illegally, he was “aiding and abetting”.

How do you know what people came to his site to do?

What about the people who came to find online files in order to leverage fair use? You can apply fair use to any digital content.

What about the people who have authority to that material and find it more convenient to use Google or that site directly in order to recapture the information (eg, when they lose their copy or maybe they have a blanket license to a very large number of works)?

What about law enforcement who want to know where to find the actual sites that are hosting this content and value knowing that information?

What about the fact that the copyright owner of those links might allow the public to gain access?

What about the fact that you can’t know what is in those files until you download them yourself?

These are all legal uses.

If you find something online, eg, http://www.apple.com or http://www.xyz.com, how do you know who is the rightful copyright owner of the material hosted there and what their wishes are?

Anonymous Coward says:

Re: Re: Re: Re:

The feds are aiding and abetting the creation of court precedent that will sink the copyright tyrants.

I love bold statements like this with bf-all to back them up. Vapid sloganism.

But can you go to jail for telling someone where to find what you think may or may not be rock cocaine or anything else for that matter and when you don’t know who that person is or what they intend to do with that information?

Yup. Same thing, the intent to traffic drugs. If you are standing on the corner and guy says “where do I get rock” and you say, “hit my supplier bob over there, he will hook you up good” because Bob is giving you rock to do it, then yes, you are part of the conpiracy to traffic drugs, even if they aren’t drugs. Intent.

What copyright material on his site? [I haven’t looked at the site, but I presume you mean the link addresses.]

You visit his site. The videos play on his pages. From what I can see as a layman looking, the videos are “on his site”. I don’t go somewhere else to get it, I go to his site. He chooses to include the content as part of his presented site. Embedding doesn’t create some get out of jail free card.

How do you know what people came to his site to do?

What about the people who came to find online files in order to leverage fair use? You can apply fair use to any digital content.

…and on and on. It’s like a torrent site. Everyone blabbers on about all the legal uses of torrents, all the linux distributions and all that crap. Then you go look at the traffic, and legal software is about a rounding error in torrent traffic. Look a the top lists, the most popular, the most traded… all pirated content. There may be people who come to his site for pure research for their college term paper, but if that was the case, his site wouldn’t be very popular, would it?

What about the fact that the copyright owner of those links might allow the public to gain access?

They they should do it on the copyright holder’s site. Did they grant this guy distribution rights? Did they grant him a license to present their content as part of his site? Does he have rights over the content, the trademarks, or anything else? Nope.

If you find something online, eg, http://www.apple.com or http://www.xyz.com, how do you know who is the rightful copyright owner of the material hosted there and what their wishes are?

You look for things like copyright notices, things like that. Your first clear assumption is that everything is copyright to someone, unless it is in the public domain or comes with a CC license of some sort.

If you see content from site A playing in a window on site b, you might wonder if site A is allowing it. When in doubt, just go to site A to enjoy the content rather than site B.

Heck, even simpler: If the site is “pirate” or “hack” or “access forbidden content” or “hijacked” anything, you can sort of figure it out.

If it walks like a duck, and quacks like a duck, it’s either a duck or Mike Masnick in a duck suit.

The eejit (profile) says:

Re: Re:

So, if he’s being charged with direct criminal copyright infringement AND aiding and abetting in the same, doesn’t that logically mean that one of the two must be wrong? OR am I missing the point?

Also, where’s the FUD about these seizures? IS it the part where ICE is seizing things that are nothing to do with its domain? OF the part where a magistrate, who has no federal authority, sign off on a warrant without there being a specified jurisdiction? Or maybe, just, maybe, it’s the part where they took down legitimate sites, where one hand of the labels didn’t know what the other was doing?

And no, piracy isn’t okay. But neither is the breach of contracts that Disney et al have done to copyright, raping the cultural coffers for money.

Dark Helmet (profile) says:

Re: Re: Re:2 Re:

“What so you’re saying that he committed direct copyright infringement AND he helped himself do it?”

No, what’s being said is that he committed direct infringement himself by embedding infringing material (1) and then aided and abetted others by making those embeds available to others (2). Both charges can apply.

And I happen to agree that if the following two things can be proven, I don’t have a problem with this guy being charged:

1. He knew the embeds were infringing

2. He willingly promoted the site to others for that purpose

The problem here is what Mike said: the chilling effects on unknowing or innocent embeds. If you embed a youtube video, it seems fair the you have a good-faith expectation that said video does NOT infringe. It wouldn’t be right to expect people to automatically assume that youtube videos are infringing by default.

The answer here isn’t to argue that this guy is innocent if it flies in the face of all the facts. The answer is to get the government and its agencies to lay out clear guidelines on willful vs. unwillful that can be used as a defense against these types of seizures.

Oh, and another thing. All you anonymous cowards that are holding up this one example to justify all the other seizures, particularly those that we’ve specifically discussed as problematic on this site: you people are batshit Charlie Sheen crazy. Get a clue, you ignorant bastards: both sides can have people in the wrong on it.

The Helmet hath spoken….

Anonymous Coward says:

Re: Re: Re:3 Re:

“If you embed a youtube video, it seems fair the you have a good-faith expectation that said video does NOT infringe.”

Huh? Why’s that? There have been LOTS of videos removed from YouTube because of infringement claims. So an expectation that such a video is not infringing would seem reasonable at all.

“It wouldn’t be right to expect people to automatically assume that youtube videos are infringing by default.”

It wouldn’t “be right” for people to assume either way.

The eejit (profile) says:

Re: Re: Re: Re:

[Citation needed]

That first sentence makes fuck-all sense. I mean, he’s aiding and abetting himself? Does he have a doppelganger who’s helping him do all of this? ‘Cause that’s just about the only way I can see both being valid.

And I hope to God that ICE have all their paperwork in order, because if they don’t, we could see this being a landmark case.

Anonymous Coward says:

Re: Re: Re:2 Re:

LOL! You don’t think it’s possible for the same person to be a direct infringer and an accomplice? What kind of citation do you need that stands for the fact that a person can be charged with two crimes? He’s charged with direct infringement and with helping others to infringe. It’s not that hard to understand. He’s not charged with “aiding and abetting himself.” LOL! Good grief. The aiding and abetting is of OTHER PEOPLE. That’s usually how that works, friend. The direct infringement is infringement that he did himself. They’re charging him with personally infringing AND with helping other people to infringe. Is it really that hard to grasp? I don’t think I can spell it out in any simpler terms for you.

Mike Masnick (profile) says:

Re: Re:

I disagree that “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.”

I pointed you to a detailed analysis of this point. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1166702

Do you disagree with this analysis? If so, why? Screaming “FUD” (when you do not appear to know what FUD means) is not a substantive contribution to this discussion, and I believe you were the one who have recently claimed that you were upset about non-substantive discussions on this site.

Your FUD about whether criminal infringement, “even if we accept the idea that it does exist,” is ridiculous. Of course it exists.

I never questioned whether criminal infringement exists. I questioned whether criminal *contributory* infringement exists.

I have no problem with you challenging my positions, but at least try to comprehend them before throwing your hands up in the air screaming FUD.

What are you so “nervous” about, Mike? Worried your pirate buddies are getting busted? But I thought piracy was “not O.K.”? LOL! Whatever you say, brother.

As stated in the post, I am nervous about the chilling effects of this. If I post embed a video on this site that turns out to be infringing, you are now saying it’s okay that I might face five years in jail. You might not think that’s chilling. But I’m the one risking jail.

You find it “super dumb.” But you’re not the one who is risking jail. It scares me that you will just wipe away the very real fact that I am fearful of being thrown in jail for linking to another site.

Hephaestus (profile) says:

Re: Re: Re:

“If I post embed a video on this site that turns out to be infringing, you are now saying it’s okay that I might face five years in jail. “

Perhaps you haven’t thought this through. All created content is copyrighted when created. logically by ICEs intepretation of the law, unless you get permission to embed a video you are guilty of a crime and can face up to 5 years in jail.

That is a truely chilling effect.

Anonymous Coward says:

Re: Re: Re: Re:

The laws have been on the books the whole time Mike’s run this blog, and that’s never stopped him from embedding a video before. Why? Because Mike knows that embedding videos as he does isn’t criminal.

Mike, if you were really scared, you’d be pulling down videos left and right. But I bet you don’t pull down a single one. Wonder why… LOL! All FUD.

Marcus Carab (profile) says:

Re: Re: Re:8 Re:

But the uploaders themselves aren’t making any money and aren’t likely to qualify as criminal infringers. And they haven’t been charged with anything, or even identified. So how can he be charged with aiding and abetting?

That’s what led to my comment way at the top of this post, wondering if they would have to prove that this guy was uploading the content to the third party sites himself…

Anonymous Coward says:

Re: Re: Re:

pointed you to a detailed analysis of this point. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1166702

Do you disagree with this analysis? If so, why? Screaming “FUD” (when you do not appear to know what FUD means) is not a substantive contribution to this discussion, and I believe you were the one who have recently claimed that you were upset about non-substantive discussions on this site.

I don’t read that paper as standing for the proposition that it’ll be all that difficult to convict McCarthy of aiding and abetting in the Second Circuit, where he’s charged. Some analysis of the current aiding and abetting laws there as they pertain to the facts would be productive. Why don’t you try that type of analysis sometime?

And I know EXACTLY what FUD means. And so do you. Don’t play dumb. You are a level 10 Jedi FUD master.

I never questioned whether criminal infringement exists. I questioned whether criminal *contributory* infringement exists.

I have no problem with you challenging my positions, but at least try to comprehend them before throwing your hands up in the air screaming FUD.

As has been explained to you over and over and over, it’s called accomplice liability, or aiding and abetting. 18 U.S.C. 2.

And now one your “friends” is being charge with it.

As stated in the post, I am nervous about the chilling effects of this. If I post embed a video on this site that turns out to be infringing, you are now saying it’s okay that I might face five years in jail. You might not think that’s chilling. But I’m the one risking jail.

You find it “super dumb.” But you’re not the one who is risking jail. It scares me that you will just wipe away the very real fact that I am fearful of being thrown in jail for linking to another site.

Do you really not see the difference between running a site like his and embedding a video on your blog? You can play the scared-blogger card all you want, but I’m not buying it. All FUD and you know it.

jason says:

Re: Re: Re:3 Re:

So, what you want us all to do is trust that the US government will properly make this distinction in intent? Am I supposed to trust that because I didn’t mean to infringe that I’m not going to have irreparable harm done to my business or end up in jail? Really? You apparently have had few dealings with the US government.

JEDIDIAH says:

Re: Re: Re:4 ICE are just wrong.

Obviously he has had few dealings with ANY government or any beaurocracy of any kind. At least it certainly seems that way.

He certainly can’t be familiar with ICE.

…and ICE is the worst. They are an agency that are used to the fact that get to treat people like dirt because they have no legal status. They are bad people to be left in charge of anything that involves actual citizens.

Anonymous Coward says:

Re: Re: Re: Re:

“Do you really not see the difference between running a site like his and embedding a video on your blog? You can play the scared-blogger card all you want, but I’m not buying it. All FUD and you know it.”

Tell that to the 80-some THOUSAND site owners whose domains were seized and replaced with a placard declaring them pedophiles.

It’s all FUD until it happens to you, Chuckles.

Chris Rhodes (profile) says:

Re: Re: Re:3 Re:

You don’t see any difference between a website that streams pay-per-views and a blog that embeds YouTube videos?

No, I don’t see any difference between a website that embeds video streams and a website that embeds video streams.

(I can’t believe I just had to say that. “I feel like I’m taking crazy pills!”)

Chris Rhodes (profile) says:

Re: Re: Re:5 Re:

Mike doesn’t do that.

Are you sure? I’ve seen multiple instances in the past where Mike has linked to a YouTube video that he knows the studios are playing DMCA whac-a-mole with in an attempt to keep it off the internet.

Since he knew the YouTube video was infringing when he posted the link, wouldn’t that constitute contributory infringement, and since this site has ads, criminal infringement?

Lock Mike up? Yes/No

Anonymous Coward says:

Re: Re: Re:3 Re:

I doubt that he can.

Aren’t you just a little punk looking for a fight. LOL!

Look at this guy’s site: http://www.channelsurf.eu/

He goes out of his way to link to the new release movies, pay-per-views, etc.

Now compare that to the typical article on Techdirt that embeds a video from YouTube.

The difference is so obvious it hurts.

Does Mike have the intent to willfully infringe when he embeds a YouTube video? No. The intent element is not satisfied. No intent means no crime.

Do you think Mr. McCarthy intended to willfully facilitate infringement when he set up his website? Of course he did. That’s the whole point.

Did I explain it enough, asshole, or should I keep pointing out the woefully obvious stuff to you?

Anonymous Coward says:

Re: Re: Re:4 Re:

“Aren’t you just a little punk looking for a fight. LOL!”

Sounds kind of like AJ.

“The difference is so obvious it hurts.”

And, yet, you can’t explain it beyond just because you said so.

“Does Mike have the intent to willfully infringe when he embeds a YouTube video? No.”

Because you say so?

“Do you think Mr. McCarthy intended to willfully facilitate infringement when he set up his website? Of course he did.”

Because you say so?

“asshole”

Yep, sure sounds like AJ.

btr1701 (profile) says:

Re: Accomplice

> I think it’s quite easy to make a case on
> an accomplice theory

In order to be legally guilty as an accomplice, you have to know the other perpetrators and affirmatively agree to enter into criminal activity with them. Merely linking to some other random person’s website whom you do not know and have never even met hardly satisfies those elements of the offense.

This has been explained to you repeatedly, yet you seem to let it fly in one ear and out the other with absolutely no comprehension.

Anonymous Coward says:

Re: Re: Accomplice

Nope. That’s not the law in the Second Circuit at all. Let’s look at the actual law:

To convict a defendant on a theory of aiding and abetting, the government must prove that the underlying crime was committed by a person other than the defendant and that the defendant acted-or failed to act in a way that the law required him to act-with the specific purpose of bringing about the underlying crime. See, e.g., United States v. Labat, 905 F.2d 18, 23 (2d Cir.1990); United States v. Wiley, 846 F.2d 150, 154 (2d Cir.1988); United States v. Zambrano, 776 F.2d 1091, 1097 (2d Cir.1985). To prove that the defendant acted with that specific intent, the government must show that he knew of the proposed crime. See, e.g., United States v. Pipola, 83 F.3d 556, 562 (2d Cir.), cert. denied, 519 U.S. 869, 117 S.Ct. 183, 136 L.Ed.2d 122 (1996); United States v. Di Stefano, 555 F.2d 1094, 1103 (2d Cir.1977); United States v. Gallishaw, 428 F.2d 760, 763 (2d Cir.1970); see also Nye & Nissen v. United States, 336 U.S. 613, 620, 69 S.Ct. 766, 93 L.Ed. 919 (1949) (aiding and abetting theory supports liability when the defendant ?consciously shares in? the underlying criminal act). To be culpable, the defendant need not know all of the details of the crime, see, e.g., United *200 States v. Grubczak, 793 F.2d 458, 463 (2d Cir.1986), if the evidence shows that he ?joined the venture, shared in it, and that his efforts contributed towards its success,? United States v. Wiley, 846 F.2d at 154 (internal quotation marks omitted); see also United States v. Aiello, 864 F.2d 257, 263 (2d Cir.1988).

United States v. Best, 219 F.3d 192, 199-200 (2d Cir. 2000).

And

Under the terms of 18 U.S.C. ? 2(a) (1994), ?[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.? To be convicted of aiding and abetting, the defendant must have taken some conscious action that furthered the commission of the underlying crime. See United States v. Dickerson, 508 F.2d 1216, 1218 (2d Cir.1975). The government must therefore prove the underlying crime was committed by someone other than the defendant and that the defendant himself either acted or failed to act with the specific intent of advancing the commission of the underlying crime. See United States v. Labat, 905 F.2d 18, 23 (2d Cir.1990).

To show specific intent the prosecution must prove the defendant knew of the proposed crime-suspicion that it might occur is not enough-and had an interest in furthering it. See United States v. Wiley, 846 F.2d 150, 154 (2d Cir.1988). In sum, to prove the act and intent elements for aiding and abetting the commission of a crime, the evidence must demonstrate that the defendant joined and shared in the underlying criminal endeavor and that his efforts contributed to its success. See United States v. Zambrano, 776 F.2d 1091, 1097 (2d Cir.1985).

United States v. Pipola, 83 F.3d 556, 562 (2d Cir. 1996).

Jose_X (profile) says:

Re: Re: Re: Accomplice

IANAL, but what you quoted appears to support the other commenter whom you claimed was wrong.

For example
>> ?joined the venture, shared in it, and that his efforts contributed towards its success,?

This suggests to me that you have to know enough details to know that a crime is in progress.

>> To show specific intent the prosecution must prove the defendant knew of the proposed crime-suspicion that it might occur is not enough

So I think you are ignoring these court decisions.

Keep in mind that you can’t possibly know if those going to your site have gotten a license or permission or if they are leveraging fair use. You can’t possibly know if a crime is being committed (and “suspicion that it might occur is not enough”).

Do you want to try again?

Anonymous Coward says:

Re: Re:

If he’s aiding and abetting linking to youtube, then clearly the proprietors of youtube need to be jailed along side him.

Funny how selective the enforcement is.

The truth is it’s not FUD, if successfully prosecuted, this case will do serious harm to the internet, and eviscerate safeharbor provisions which protect aggregation and search engine sites by requiring rightsholders engage in notice and takedown procedures.

Anonymous Coward says:

Re: Re: Re:

The truth is it’s not FUD, if successfully prosecuted, this case will do serious harm to the internet, and eviscerate safeharbor provisions which protect aggregation and search engine sites by requiring rightsholders engage in notice and takedown procedures

Nope, you read it wrong.

It will certainly CHANGE the internet. It will allow for the potential of actual business models based on the rights granted in the constitution and the copyright law. Content producers will be able to move forward with business models without having to worry about competing against their own purloined content.

Those people who wish to release their content for free in the open net will be able to without restriction, there will be whole new markets for movies, music, and other creations because there will be certainty in the marketplace.

The current levels of piracy and “borrowing with payment” for content will go away over time, the laws (and the courts) are only just starting to catch up with the thieving little bastards who think they can thumb their noses at everyone for a few bucks and standing on their local chat board. The free ride train is entering the final station, enjoy walking from here.

Anonymous Coward says:

Re: Re:

“Your FUD about whether criminal infringement, “even if we accept the idea that it does exist,” is ridiculous. Of course it exists. It exists in those two statutes McCarthy is charged with.”

Mike said “criminal contributory infringement.”

Why are copyright apologists such big liars?

Jay says:

Read this earlier

So before anyone comes in to say that “Bryan made $90000 in FIVE YEARS”, we better straighten that out:

90000 / 5 = $18000

Basically, you can flip burgers and make MORE than what this guy made on a site that offered to link to official sites.

Oh, he’s also face 5 years of jail time to what amounts to a civil dispute.

So if you’re going to say he’s a filthy pirate, with NO content on his site, or the fact that the law exposed all of his details with little to no due process, please keep the story straight.

Jay says:

Re: Re: Read this earlier

I’m focused mainly on the 5 year huge gross income. I’ve made $100000 in my lifetime, but that doesn’t take into consideration the expenses I’ve had while maintaining something else.

Brian is 32 and still living with his father. So, with all things told, he may just run this for fun or some other benefit. The point stands that only focusing on the income without a look into expenses, or who benefits by the anticompetitive nature of the ICE takedowns, is trying to throw the baby out with the bathwater.

Anonymous Coward says:

Re: Re: Re: Read this earlier

Jay, you are trying to excuse piracy because you feel the copyright holders have done something worse. It’s the classic “the other car was going faster” excuse for a speeding ticket, and it doesn’t work. The legal system isn’t based on “someone else did worse”, it’s based on did you or did you not break the law.

The guy is 32 living with his father? ‘Nuff said.

Jay says:

Re: Re: Re:2 Read this earlier

*sigh*

Look at Criminal copyright infringement:

? 506. Criminal offenses

(1) In general. ? Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed ?

(A) for purposes of commercial advantage or private financial gain;

(B) by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or

(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.

(2) Evidence. ? For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright.

(3) Definition. ? In this subsection, the term ?work being prepared for commercial distribution? means ?

(A) a computer program, a musical work, a motion picture or other audiovisual work, or a sound recording, if, at the time of unauthorized distribution ?

(i) the copyright owner has a reasonable expectation of commercial distribution; and

A) What financial advantage does he gain over the copyright holder? What does he gain by merely LINKING to already given material? If I LINK to xkcd on my website, I haven’t given them any financial disadvantage. As a matter of fact, I’ve HELPED them.

B) A link, is NOT hosting the content.

It’s not an excuse for piracy to note that the copyright holder probably made more than he did. Hell, it’s not even a stretch to say that the ICE agents made about as much as he did!

What’s inexcusable is that he is being charged with a criminal act for what amounts to something that needs civil redress.

Dark Helmet (profile) says:

Re: Re: Re:7 Read this earlier

Meh, okay. I hate this stuff because I have no interest in defending this guy if the facts are as ICE says they are (we’ll see them try to prove it in court and then we’ll probably no for sure). I personally don’t have a problem with piracy but I can see why others do. I’d love to have tons of people widely sharing my stories.

What I want, and I’ll never ever get this, is for the government to actually do its damn job and become a moderate voice between the two sides and build out compromised rules that benefit both as much as possible. When did governments mistakingly start believing that they have to take sides in this crap?

Marcus Carab (profile) says:

Re: Re: Re:8 Read this earlier

Mostly I agree, but I have to confess to a certain amount of “see how you like it” welling up in me over this one. The industry has twisted the law to create countless legal loopholes which allow them to squash totally legitimate activities (like DMCA anti-circumvention) – so if a member of the public can find legal loopholes that allow them to do something like this, I can’t say I’m shedding a lot of tears (though I do agree that, ideally, the law would not be a grand ballet of opposing loopholes)

Jay says:

Re: Re: Re:9 Loopholes?

From looking at copyright law, it’s so heavily favored towards business, that it doesn’t give the regular person a chance…

Accused of infringement? $200 off the bat

Distribute? Criminal offense

Use more than a paragraph? $150,000 per infringement.

The concept of fairness does not equate to the large rewards for successfully bankrpting accused people of the financial equivalent of jaywalking.

JEDIDIAH says:

Re: Re: Re:8 ICE jackboots

I don’t care if the facts are even as ICE says they are. This guy is an aggregator. He’s not the real problem. Getting rid of him won’t make the problem go away. It will just make the problem less visible.

It’s probably asking too much of law enforcement to exploit sites of this kind in order to prosecute the actual infringers.

Shutting down the Corleone Yellow Pages won’t shut down the Five Families.

Capitalist Lion Tamer (profile) says:

Re: Re: Re:2 Greetings, AC Trolls!

This missive is sent to inform you that while you were tied up here typing logical rings around yourself, I was over at your site helping myself to your music. (The front door was open, so I let myself in.)

I dug around in there until I found what I was looking for and took it ALL. I took everything. I took the mp3s. I took the WAVs. I even took the unreleased and uncompressed stuff that was hidden at the way back of the drawer labeled “/index.”

Anything I could find, I was taking. I even took the wallpaper and the cute “Hang in there. It’s almost Friday!” poster I found hanging on the wall. I checked the back room as well.

I downloaded it all right into my bag (the white, roundish one with the music note printed on it) and sped away to Pirate Headquarters.

Once there, I spread out my take. Me and the other pirates cranked up the new tunes on the computer speakers and had a few drinks. We danced around a little and giggled a bit at the distraught kitten on the poster. The pirate management was happy and promoted me to Pirate-Second Class. There’s no pay raise and it’ll still be six months before I’m allowed to upload, but at least I don’t have to clean the bathrooms anymore.

Long story short: we’ve got your music. You don’t have it anymore. It’s cleaned out. I don’t even know why you’d bother getting out of bed tomorrow. Your career is over. How’re you going to sell music when you’re all out of stock?

Not only that, but if I’m understanding half of what you say, I also took an assload of your intellectual property as well. If it wasn’t nailed down, I took it.

Better cancel those upcoming gigs. I’ve got part of your intellect now. Good luck playing the harpsichord or mouth harp or whatever it is that you used to know how to do. It’s not going to be much fun standing in front of an expectant crowd watching your fingers trying to awkwardly interact with your favorite instrument. It’ll be like watching two co-workers who slept with each other the night before.

Like I said, I was all over the place grabbing stuff. Hopefully, I didn’t take too much of your IP, otherwise you may have trouble interacting with the public or forming coherent thoughts.

Good news, though. I can give it all back to you. Cheap. If you’re willing to negotiate, you can have all your music and intellectual property back intact within mere hours.

However, if you don’t want to cooperate, things will nasty very quickly. Do you recognize this?

0110011100001100111000110010

I thought so. If you don’t act fast, I’m going to start pruning this stuff down to teeny, tiny stems and distribute them to every remixer and mashup artist on the planet. They’ll be more than happy to build on this grab bag of IP and turn it into something enjoyable.

I’ll be in touch.

Smooches!
CLT
Pirate – 2nd Class
Loosely-Confederated Pirates of America
A Division of Pirating Pirates Worldwide, LLC

P.S. ASCAP is hassling me about some sort of “public performance” royalties on behalf of you. I told them you had neither the evidence nor the skill to make that claim. They’re headed your way now.

MrWilson says:

If you make any money in anyway in which a wealthy person perceives that they could have made that money instead, you are stealing money from them. Since money is a form of speech, you are stifling their first amendment rights also!

/sarcasm

Can we get greed declared as a religion so that Congress shall make no law respecting an establishment of it?

Brendt says:

Criminal Copyright Infringement

Clearly, Criminal Copyright Infringement (or CCrI ’cause I get tired of typing that) does have a legal justification. If I take, oh, the game Starcraft II, change the name to SpaceWar X, change the branding info to Brentsoft, repaint it and sell it as my own game (costs $19.95, copyright owned by me) then I am conducting CCrI.

It’s WAY less clear if CCrI can apply to an aggregator, or if profits from just visiting a site hosting a file can rise to CCrI level, but CCrI can clearly occur.

Anonymous Coward says:

Lets not forget that the internet was funded by state/privately funded colleges in the beginning. If this guy is guilty of aiding at abetting, then who do we contact to sue the any party responible for developing any part of the internet… for funding the development of the internet which caused so much pirating.

Oh Snap!

Anonymous Coward says:

Re: Cherrypicking

For all of our Anonymous friends that our jumping up and down over this announcement:

I really never had a doubt that DHS/ICE/Justice Dept. would cherry pick a few of the weakest opponents to actually take to a trial in order to justify taking down the other 98% of the domain names.

I think the main reason there aren’t more arrests along with these seizures is because most of the purported criminals live outside of the US. This guy just happened to live in Texas.

How much do you want to bet that they seized his computers–and without a prior adversary hearing?

I hope this guy mounts the best defense in the world, and challenges the heck out of the domain name seizure. Keep in mind though that even if he gets the domain name seizure thrown out, he’s still facing the criminal charges.

Anonymous Coward says:

Re: Re: Re:3 Cherrypicking

ou do remember Grokster don’t you?

They failed on the vicarious charge, but direct infringement?

This is secondary liability and you know it, who is making stuff up now?

No, I don’t know it. I don’t have inside info and there’s scant public info. The complaint wasn’t uploaded to PACER or Lexis when I checked an hour ago. The feds charged him with direct infringement. Perhaps we should see their explanation before we go about pretending like we know it’s not possible. You’re the one pretending to know things.

Gwiz (profile) says:

Re: Re: Cherrypicking

How much do you want to bet that they seized his computers–and without a prior adversary hearing?

They probably did. I have no problem with seizures conducted with the intent to preserve evidence and have always stated that.

My problem arises with seizures that have nothing what so ever with collecting evidence and are basically punishment prior to a trial (ie: domain name seizures)

Anonymous Coward says:

Re: Re: Re:

Customs is dealing with the import and export of physical goods.

ICE by way of its predecessor (the US Customs Service) has a long history of enforcing intellectual property laws. Nothing in its enabling legislation limits its jurisdiction to “physical goods.” Its only natural that the established enforcement agencies adapt to the realities of an economy that is becoming more and more dependent on non-physical goods.

Anonymous Coward says:

Brushing up on the law LoL

reckless disregard (important expression here)

1850 Copyright Infringement?Third Element — Willfulness
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01850.htm
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01841.htm
http://itlaw.wikia.com/wiki/Willfulness

The government can’t prove direct infringement that much is very clear, so they will go for the contributory or vicarious liability so they need to prove intent or reckeless disregard.

Is there anything that can prove willfulness on the part of that man? or something that shows he was reckless?

Flabbergasted says:

They just don't understand

How technology works. Mike is absolutely correct in that his site did not HOST, DISTRIBUTE or HAVE any infringing content. THe only thing his site did was send a bit of text (a hyperlink) to a client’s browser. The browser then sent a request to THAT server, and received what was served. The fact that they are pursuing criminal charges in this case is, in itself, criminal.

It reminds me of the creationists arguments: Well, I don’t understand how science can tell the earth is billions of years old, so therefore it must not be true. Just because YOU don’t understand how something works, does NOT make it wrong/illegal/immoral or theft. Learn how the technology works first, then decide if it’s infringing or illegal.

Oh, but I forget, lawyers run this country and they think they can argue facts…whether they’re true or not.

… still waiting for the next internet…

Someone says:

Basic legal change

All of this is leading us down a road to “guilty until proven innocent”. It’s been happening for a while, but it’s gotten really bad lately with the IP/Copyright and TM legal challanges (but what do you expect? We’ve been churning out lawyers at a VERY impressive rate for the last 10 years, and lawyers, if they can’t “find” a job, will “make” one).

Basically it’s become this: If you are an individual, accused by a corporation or a large organization, it’s assumed you are guilty and due process no longer, or is given lip-service (kind of like being a terrorist).

If you’re a corporation/organization who’s accused by an individual, you are assumed innocent until proven guilty, and the individual is considered suspect, in motive, intent and character (see Bradley Manning).

Basically all the rights rest with the money (i.e. the corps), and all the burden of proof lies with the individual. Since the corps can ALWAYS afford more legal help then 99% of the individuals, they will usually lose, thus setting even more precedent and example that this way is “right”, “proper” and “legal”.

Further and further down the rabbit hole we go.

“One nation, under incorporation”

Hank Single says:

Disturbing.

I worked for a major pharmaceutical retailer for nearly a decade. They had a number of disciplinary policies and one of the key ones was a three strike rule; if you were written up for three infractions, whether or not you were informed that you were written up for them and they were just stuffed in your file, you could be fired at any time. Most people accrued three infractions inside of the first week – I know of numerous incidents were a co-worker was fired for incredibly questionable things at very questionable times; two locations I worked for regularly purged the store of the overweight and Latin-American populations immediately after the holiday rush, for instance, but always relied on the infractions in the folder as being the cause. It was policy. That was that.

I managed to acquire something like 400 over a decade, but I am white and relatively trim.

What worries me is setting a precedent not where you will be arrested because you posted a youtube video, but where you could be – similar to seat-belt laws in MA, which you will rarely be pulled over for on it’s own, only if the cop doesn’t like the look of you.

Profiling on the internet being more about social progression and political affiliation, it will be interesting to see how this plays out.

Anonymous Coward says:

Time for a new domain for Techdirt?

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.

You might want to think about getting out of .com. Maybe .org, or .me. Something less seizable, that’s the main thing. Just saying.

MedicFL1 says:

ICE Lawsuits

Does it not beg the question of arresting freedom of speech?
Unless one knowingly commits a criminal act, one should be free from governmental harrassment in posing their views, reposting the views of others they agree with and/or their podcast’s – videos. Is it not legal to “quote” another person, magazine article, advertisement etc.
Where is the ACLU when you need them? Going after a money suit they can win, that’s where.

Robin (profile) says:

Guilt vs Innocence

Is this trial by blog?
I don’t know exactly what the charges are,what evidence exists.
What I do know is that his Guilt or Innocence is being determined by a jury of bloggers with scant knowledge of the events.
If I take a superficial view of the events,I can assume that Google will also be charged with aiding and abetting by having posted links to torrent sites etc.
If you download music etc for personal evaluation as to whether you like a band or soloist and then purchase a copy from a legitimate retailer if you do like what you have listened to, then the illegal act has in fact helped promote the artist. If not liked, then it has been a waste of internet quota and hard drive space.
When it is done for commercial gain i.e. burning copies of music or movies for sale then that is UNETHICAL.
Brian has not yet been to court and found guilty or innocent.
Lets keep this blog a discussion of the pros and cons of the law and how it is enforced, what the implications are to freedom of speech and how control of the internet by governments can undermine our access to information.

wokmage (profile) says:

etc.

Dumb question, but wouldn’t the sites that he was linking to have to provide the html code necessary for him to embed it? Which would mean either:
A. it was legally uploaded media with a freely provided link (like me embedding a clip from The Daily Show)
or
B. it was illegally uploaded in which case wouldn’t it be analogous to me drawing you a map to the physical location of a fence so you could buy/receive stolen property?

Anonymous Coward says:

Re:

You don’t know that, you admittedly didn’t read any documents, for all you know his e-mails could show that he had no clue about the law and his intent was not make money but share with others his passion for sports, it could also come to light that he was thinking about money and used he new he was breaking some law and still continued.

So you can stop the FUD now, you are ignorant of the facts as everybody in here and are just making shit up.

Anonymous Coward says:

Re:

How do you know that are you an insider have you seen the evidence?

Nope as you so pointedly posted before, what you do have is a strong bias and presumption.

Most people wouldn’t think it is illegal or a big deal to retransmit free over the air content, most will believe instinctively that if they are not cutting out the ads then they had caused no harm to anyone.

So if the reports are correct his emails could condemn or save him based on what is there, but according to some reports Brian(or Bryon) McCarthy has already reached out and said he would fight the seizures of his domain name, is that looks like somebody aware of infringement to you?

If in his personal emails comes out that he was clueless about the law all that intent to willfully infringe on copyrights is lost and criminal charges become harder and harder to prove.

Anonymous Coward says:

Re:

PirateBox

Quote:

What are you currently sharing on your PirateBox?
I’ve seeded my box with a variety of songs, books, and videos. At the moment, my PirateBox includes a collection of stories by Cory Doctorow, Abbie Hoffman’s Steal this Book, DJ Danger Mouse’s The Grey Album, Girl Talk’s Feed the Animals, a collection of songs by Jonathan Coulton and some animations by Nina Paley.

How are you going to combat insulated networks?
Piracy numbers are down for music, but sales didn’t pick up that means people found alternatives either legal(i.e. Jamendo, Magnatune, Youtube, Spotify, Pandora) or illegal ones that are out of reach of surveillance, where do you think things are going?

G Thompson (profile) says:

errrr

Actually that is not quite correct, legally the word commercial means if a reasonable person could satisfy that they could make a living (ie: all costs associated with standard of living are and have been met by the alleged commercial endeavour. Therefore the onus of commercial use is ONLY shown when the takings outweigh the expenditures (The P&L is not in the red)and those takings allow a standard of survival to exist.

Also specifically for criminal charges mens rae has to exist as well, with the onus on the prosecutor to show that there is ABSOLUTELY no reasonable doubt whatsoever that the defendant had absolute intent to both Aid and abet third parties knowingly and for the purpose of commercial gain.

Mike is also correct in stating that 90K is minimal, since it absolutely is a minimal amount of money in this sort of situation. In fact even though it might sound like a lot to the layperson, it’s actually a negligible amount.

Anonymous Coward says:

Re:

But can you go to jail for telling someone where to find what you think may or may not be rock cocaine or anything else for that matter and when you don’t know who that person is or what they intend to do with that information?

The law is so broad that yes you can be found guilty of aiding and abetting, contributory, vicariously or all of them at the same time it depends on the judge and judges generally uphold those laws selectively, the law doesn’t go after big players that often, but police use that to harass youth on the streets and instill fear in their hearts.

The law says that any person who contributes to a crime can be held responsible as a principal as long as intent is proven, so if you are found to have helped intentionally you are guilty just the same as the person actually committing the crime.

Contribution can come from inaction, information or anything that helps the a crime to occur.

Mind you that those laws are selectively enforced and are not clear for a reason and that is to give judges space to operate and in theory catch the bad guys, but are being abused.

Anonymous Coward says:

Re:

I don’t think you understand the underlying tech, people will not just rollover, if they can’t get it for free from one source they will find a legal free source, the music industry just spawned free labels to appear all over the place, the same thing will happen to others.

How are you going to combat that?

Are you going to seize Jamendo assets?

G Thompson (profile) says:

Re:

Interesting,

Hypothetical.

I intend to sell rock salt as cocaine..
The undercover law officer knows that I intend to sell it as cocaine but also knows it is actually rock salt.
they purchase it.
I get arrested and charged.

Who’s at fault.

Next question.

I intend to commit harm towards you.
I have no reasonable way of committing that harm but I tell the world I want to anyway
I have intent “guilt mind” and have actus of telling the world that I would if given “highly unlikely” the chance

does this satisfy any criminal conviction?

Next.

I unwittingly without prior knowledge poured what I assumed to be rock salt into a dish and sold it in my restaurant. Do I get charged with a drug crime becasue it actually turned out to be cocaine placed there by an ex employee? [lets not delve into negligence ok]?

Anonymous Coward says:

etc.

http://en.wikipedia.org/wiki/Aiding_and_abetting

Wikipedia surprisingly(not really) explains the law in a clear way.

The thing to remember is that the prosecution must prove intent, just being present at the scene of a crime is not the same as being instrumental to that crime, for that you need to have a) acted(inaction is also an action) b) demonstrated intent.

To him to have contributory liability he needs to act in this case he provided the links and he must have known it was infringing, if it ever comes out on emails that were seized by ICE that he made any comment saying he knew or suspected it was infringing he is screwed.

Anonymous Coward says:

Re:

Quote:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

Specific and general intent crimes

Quote:

What Is a Specific Intent Crime?
If you are accused of a specific intent crime, the prosecution must prove that when you committed the crime you had the requisite intent or purpose. This intent will be listed in the statute that defines the crime. If you didn’t act with this intent or purpose, then you cannot be convicted of the crime.

Quote:

Hypothetical.

I intend to sell rock salt as cocaine..
The undercover law officer knows that I intend to sell it as cocaine but also knows it is actually rock salt.(He just needs a way to prove it)
they purchase it.(He needs some way to show that you was selling a drug doesn’t matter if it is salt, if he records you saying this is the good shit and give indications it is a drug he is screwed)
I get arrested and charged.

Who’s at fault.(don’t know what you mean by that)

Anonymous Coward says:

Re:

Quote:

I intend to commit harm towards you.
I have no reasonable way of committing that harm but I tell the world I want to anyway
I have intent “guilt mind” and have actus of telling the world that I would if given “highly unlikely” the chance

does this satisfy any criminal conviction?

In the U.S. yes, you could be thrown in jail depending on the state.

Quote:

Some states also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury.

Source: Wikipedia: Assault

Specific and general intent crimes

Quote:

What Is a Specific Intent Crime?
If you are accused of a specific intent crime, the prosecution must prove that when you committed the crime you had the requisite intent or purpose. This intent will be listed in the statute that defines the crime. If you didn’t act with this intent or purpose, then you cannot be convicted of the crime.

Quote:

Hypothetical.

I intend to sell rock salt as cocaine..
The undercover law officer knows that I intend to sell it as cocaine but also knows it is actually rock salt.(He just needs a way to prove it)
they purchase it.(He needs some way to show that you was selling a drug doesn’t matter if it is salt, if he records you saying this is the good shit and give indications it is a drug he is screwed)
I get arrested and charged.

Who’s at fault.(don’t know what you mean by that)

Quote:

I unwittingly without prior knowledge poured what I assumed to be rock salt into a dish and sold it in my restaurant. Do I get charged with a drug crime becasue it actually turned out to be cocaine placed there by an ex employee? [lets not delve into negligence ok]?

The state needs to prove intent so I find it difficult you would be found guilty of anything there, but I will not tell you I know of every little law that was passed in 500 years, there could be a way to make someone go to jail.

This is the scary part about laws, they are so many and so complex that nobody not even lawyers and judges can be certain of anything.

Anonymous Coward says:

Re:

Reckless disregard, you know that website is infringing or so you believe ferociously right there is intent, not to harm copyright holders but in anger causing that harm and disregarding the copyright owners rights to try and prove a point.

You are just as guilty as the man you are accusing of criminal infringement.

Also don’t try the impossibility defense, you yourself have pointed out it doesn’t fly on U.S. courts.

Anonymous Coward says:

Re:

There is the “for commercial adavantage” and “personal financial gain” thingy.

If he gets money from an interested party that is financial gain and that linking could be said to be commercial in nature, if he is working for some entity that is a competitor to that service that could be seen as a commercial interest since posting that could harm the competitors of people who pay him.

Anonymous Coward says:

Re:

How do you know that are you an insider have you seen the evidence?

I went to his website, and I used my common sense. Check it out yourself: http://channelsurf.eu/

I’m not alleging to know any facts that I can’t know. Of course it’s my opinion on the matter. Duh.

I don’t think his emails will save him. After ICE seized his first domain name, http://channelsurfing.net/ he replaced it with the second.

It’s kind of hard to pretend like he wasn’t on notice that maybe he was doing something wrong after the feds seized his domain name.

This appears to me to be a person who enjoyed thumbing his nose at the law. Perhaps a few years in a federal penitentiary will cure him of that.

Anonymous Coward says:

Accomplice

Oh good, I was hoping someone would actually want to talk about the law rather than just unilaterally claim that “the standard for aiding and abetting are much, much higher.”

For example >> ?joined the venture, shared in it, and that his efforts contributed towards its success,? This suggests to me that you have to know enough details to know that a crime is in progress.

He knows the details of the crime in progress. In fact, his site is facilitating that very crime by design.

>> To show specific intent the prosecution must prove the defendant knew of the proposed crime-suspicion that it might occur is not enough So I think you are ignoring these court decisions.

He not only knew of the proposed crime, he went out of his way to ensure that it occurred. And while he profited from it, no less. He had more than suspicion. The very fact that the crime was working as planned was verified each time he received monies from the advertising on that site.

Keep in mind that you can’t possibly know if those going to your site have gotten a license or permission or if they are leveraging fair use. You can’t possibly know if a crime is being committed (and “suspicion that it might occur is not enough”).

Possible licensing and fair use are not going to get this guy off the hook. He can’t reasonably of thought that all of those first-run movies, sporting events, and pay-per-views were all legally licensed by others, much less licensed to him, or have thought that the millions of page views he was receiving were all fair use. Those are all just hollow rationalizations, and I can’t imagine a jury ever would buy that.

Do you want to try again?

Nope. Don’t need to. Do you?

Anonymous Coward says:

Brushing up on the law LoL

Is there anything that can prove willfulness on the part of that man? or something that shows he was reckless?

Ummm. Have you seen his site? http://channelsurf.eu/

Do you think he updates that site with links to the latest, hottest “stolen” videos, but then the jury’s going to buy the idea that he wasn’t intending to do anything wrong?

Intent can be inferred. In fact, it usually is, since the bad guy doesn’t use tell the jury that he meant to do it.

Good luck with that.

Anonymous Coward says:

I thought I’d toss out this quote from Judge Posner, since I like it so much, and it mentions aiding and abetting in a copyright sense:

There are analogies in the law of aiding and abetting, the criminal counterpart to contributory infringement. A retailer of slinky dresses is not guilty of aiding and abetting prostitution even if he knows that some of his customers are prostitutes-he may even know which ones are. See United States v. Giovannetti, supra, 919 F.2d at 1227; People v. Lauria, 251 Cal.App.2d 471, 59 Cal.Rptr. 628 (1967); Rollin M. Perkins & Ronald N. Boyce, Criminal Law 746-47 (3d ed.1982). The extent to which his activities and those of similar sellers actually promote prostitution is likely to be slight relative to the social costs of imposing a risk of prosecution on him. But the owner of a massage parlor who employs women who are capable of giving massages, but in fact as he knows sell only sex and never massages to their customers, is an aider and abettor of prostitution (as well as being guilty of pimping or operating a brothel). See United States v. Sigalow, 812 F.2d 783, 784, 785 (2d Cir.1987); State v. Carpenter, 122 Ohio App.3d 16, 701 N.E.2d 10, 13, 18-19 (1997); cf. United States v. Luciano-Mosquera, 63 F.3d 1142, 1149-50 (1st Cir.1995). The slinky-dress case corresponds to Sony, and, like Sony, is not inconsistent with imposing liability on the seller of a product or service that, as in the massage-parlor case, is capable of noninfringing uses but in fact is used only to infringe.

In re Aimster Copyright Litig., 334 F.3d 643, 651 (7th Cir. 2003).

To use Judge Posner’s analogy, McCarthy and his channelsurfing.net website are the massage-parlor case, not the slinky-dress case.

Jay says:

Re:

That’s the most morally bankrupt position I’ve heard of you yet, AJ.

Saying an accused person deserves jail time for what amounts to jaywalking. Great strategy for innovation.

Tell you what, how about figuring out a supposed “crime” that actually involves infringed rights such as how to prevent or solve murders, rapes, and torture cases? Wouldn’t that be a better use for the Feds time than going after what amounts to a civil lawsuit?

Karl (profile) says:

Re:

Just a minor correction:

This case involves criminal copyright infringement under the criminal code 18 U.S.C (sec. ?), while the DMCA is a civil law under 17 U.S.C. (sec. ?) that imposes civil (read money) rather than criminal (your freedom) liability.

Criminal copyright infringement (like all copyright infringement) is also in 17 USC, specifically 17 USC 506. 18 USC 2323 deals with civil forfeiture proceedings (for both copyright and trademark infringement).

The DMCA is in 17 USC 512. It explicitly says “monetary relief, or […] for injunctive or other equitable relief.” So, it is not limited to civil infringement. If you obey that law, you’re not liable for civil infringement, and you’re innocent of criminal infringement. (Even if it wasn’t explicit in the law itself, it seems like obeying takedown notices should exempt you from “willful infringement.”)

Did this guy obey takedown notices? Who knows. Certainly there was no attempt by ICE to find out, at least none mentioned in the seizure affidavit.

The rest of your post I agree with.

Karl (profile) says:

Re:

You only need prove that there was a crime by some other party

But, that’s the whole point.

The direct infringers, the “principles” in legalese, were engaged in infringement, but not criminal infringement.

So, there was no “crime by some other party.” His own acts, in and of themselves, have to be criminal. He cannot be guilty of “aiding and abetting” something that is not criminal in the first place.

Now, if his acts are criminal in and of themselves, and furthermore he assisted other people in committing his own acts, then he’s also guilty of aiding and abetting. But from what I can tell, that’s not what he’s accused of.

Karl (profile) says:

Re:

Look, I don’t care if you guys think there shouldn’t be copyright, but don’t pretend like this guy is an Easter lily.

I can’t speak for others here, but I am a copyright reformer, not an abolitionist.

And personally, I don’t care if this guy’s site gets shut down. Before these seizures happened, I’d never heard of it. No skin off my nose.

But there’s no way in Hell that this guy deserves to be sent to jail for what he did. If this should even be considered criminal (not civil), and that’s a big “if,” it should at most be a misdemeanor.

Criminal copyright cases are historically reserved for repeated, large-scale, commercial infringement. They should be going after commercial counterfeiters – or, for that matter, the labels who repeatedly violate artists’ copyrights. Not some douchebag who runs a website as a glorified hobby from his dad’s basement.

And before he gets punished at all – even with an injunction – he should at least get a chance to present his side of the story.

Alex L says:

Anyone else find it hilarious that there’s a “link to this” at the bottom of all our comments?

There is no TOS plainly visible about the comment I’m submitting becoming property of techdirt, which means it’s still my intellectual property as its my own work (all 45 seconds of it…)

so…ZOMG ICE ARREST THESE B*&$%#S FOR LETTING PEOPLE INFRINGING ON MEEEEE AND MY COMMENT!

Karl (profile) says:

Re:

To use Judge Posner’s analogy, McCarthy and his channelsurfing.net website are the massage-parlor case, not the slinky-dress case.

First of all, I just went to his site, and there are apparently non-infringing streams on there as well (they are embedded from the networks’ own websites). The site was not used “only” to infringe.

Second of all, Posner was making the analogy in terms of civil infringement law. He was talking about the standards for civil contributory infringement. This should be apparent since Posner said they were only “analogies,” and since Aimster was not a criminal case.

In fact, the very absence of case law that is not only analogous, points to the notion that there is no such thing as criminal aiding and abetting of copyright infringement.

That’s probably why some members of Congress tried to make it so there was. They introduced something called the INDUCE Act in 2004, which would create a law against inducing copyright infringement. After massive objections, the act was shelved, and never made it into law.

Until something like that is passed, I’m guessing the “criminal aiding and abetting” charges are dead in the water. We’ll find out, I suppose.

Anonymous Coward says:

Re:

Criminal copyright infringement (like all copyright infringement) is also in 17 USC, specifically 17 USC 506. 18 USC 2323 deals with civil forfeiture proceedings (for both copyright and trademark infringement).

The DMCA is in 17 USC 512. It explicitly says “monetary relief, or […] for injunctive or other equitable relief.” So, it is not limited to civil infringement. If you obey that law, you’re not liable for civil infringement, and you’re innocent of criminal infringement. (Even if it wasn’t explicit in the law itself, it seems like obeying takedown notices should exempt you from “willful infringement.”)

Did this guy obey takedown notices? Who knows. Certainly there was no attempt by ICE to find out, at least none mentioned in the seizure affidavit.

The rest of your post I agree with.

Criminal copyright infringement is addressed in 17 U.S.C. 506 and 18 U.S.C. 2319.

Obeying takedown notices is not sufficient to avoid criminal liability. Imagine if I set up a website 100% devoted to piracy. All I do is put pirated movies, music, pay-per-views, etc. on this website. But, I also have a registered DMCA agent, and I always immediately takedown material when notified. Does the fact that I follow the DMCA takedown procedures negative the fact that I intentionally set up a website devoted to piracy? Of course not. That makes no sense whatsoever, and I’m surprised you don’t realize this.

Whether McCarthy complied with takedown notices is completely irrelevant since he devoted his website to piracy.

Anonymous Coward says:

Re:

But, that’s the whole point.

The direct infringers, the “principles” in legalese, were engaged in infringement, but not criminal infringement.

So, there was no “crime by some other party.” His own acts, in and of themselves, have to be criminal. He cannot be guilty of “aiding and abetting” something that is not criminal in the first place.

Now, if his acts are criminal in and of themselves, and furthermore he assisted other people in committing his own acts, then he’s also guilty of aiding and abetting. But from what I can tell, that’s not what he’s accused of.

In order to prove aiding and abetting, they will have to prove that someone else committed a crime. Apparently they think they can prove this. They also think they can prove that he’s a direct infringer. We’ll see.

We can sit around and guess about whether they really have this evidence, but it’s just conjecture. What we do know is that the U.S. Attorney for the Southern District of New York swore to a magistrate judge that he had such evidence.

Hopefully they’ll post the complaint soon so we can dissect it.

Anonymous Coward says:

Re:

First of all, I just went to his site, and there are apparently non-infringing streams on there as well (they are embedded from the networks’ own websites). The site was not used “only” to infringe.

You think he has the right to embed the network feeds? I doubt it.

Second of all, Posner was making the analogy in terms of civil infringement law. He was talking about the standards for civil contributory infringement. This should be apparent since Posner said they were only “analogies,” and since Aimster was not a criminal case.

I know. I didn’t suggest otherwise. I just liked the quote.

In fact, the very absence of case law that is not only analogous, points to the notion that there is no such thing as criminal aiding and abetting of copyright infringement.

Aiding and abetting of any crime is a very old notion. It’s being applied to a crime that perhaps it hasn’t been applied to before, but that doesn’t make it any less of a crime or anything strange. The point is irrelevant.

Until something like that is passed, I’m guessing the “criminal aiding and abetting” charges are dead in the water. We’ll find out, I suppose.

No chance. There’s no exclusion for criminal copyright infringement to 18 U.S.C. 2. It’s a no-brainer.

Karl (profile) says:

Re:

Imagine if I set up a website 100% devoted to piracy. All I do is put pirated movies, music, pay-per-views, etc. on this website. But, I also have a registered DMCA agent, and I always immediately takedown material when notified. Does the fact that I follow the DMCA takedown procedures negative [sic] the fact that I intentionally set up a website devoted to piracy?

If you set up a website that is protected under 17 USC 512, and you follow those rules, then yes, absolutely, it does.

Don’t like it, write your Congressman to change the law, like the rest of us have to do.

But there is a good point here. Is his site in one of those categories that is protected under 512? The links were not posted “at the direction of a user,” they were posted by himself directly. Since he’s not a “service provider” in any way, it looks like his site is not protected.

Even so – if he did in fact obey takedown notices, that should absolve him of “willful” infringement. Certainly he could be sued out of existence, and a judge could issue an injunction on his whole site (after a hearing of course). But he shouldn’t be sent to prison.

Karl (profile) says:

Re:

You think he has the right to embed the network feeds? I doubt it.

Actually, for the network feeds, he didn’t embed them, he linked to them.

The stuff he embedded was from third-party OSP’s. I didn’t look at all of them, but after a cursory glance at one or two, it looks like all the embedded streams were, in fact, allowed to be embedded by these third-party OSP’s.

The material on these third-party OSP’s was uploaded by users, and may or may not be infringing. But the act of embedding was not, in and of itself, infringing.

Karl (profile) says:

Re:

One other thing…

No chance. There’s no exclusion for criminal copyright infringement to 18 U.S.C. 2. It’s a no-brainer.

If it’s such a “no-brainer,” why was the INDUCE Act even introduced at all? Why was it even necessary? Why did it get shelved?

The “inducement” language of that act was identical to the “aiding and abetting” language in 18 USC 2. Clearly, Congress believed that inducing copyright infringement was not covered. And decided to leave it that way.

anonymouskiller says:

Re:

your a fucking douche bag i hope someone shoots you in the fucking face,go kill your self asshole

you fucking corporate sicophant peice of shit
you must work for the riaa or mpaa

its fucking assholes like you,that think(and i use that term loosly)like you that are going to get all of our rights taken away,and the internet completely owned and controled by big multinational corporations and government,go fucking move to communist china,oh nevermind that would be too free for you as well you fucking nazi scum

Gwiz (profile) says:

Re:

I would like to weigh in my two cents on the intent part of this. Since I obviously don’t know the specifics of this particular case and I cannot read minds I am going hypothetical.

Rewind to 5 years ago. My intention is to set up and run a legal website that contains embedded links. In the legal climate of 5 years ago, I am guessing that you would be hard pressed to find someone who would tell you that simply linking or embedding to possibly infringing content would expose you to 3rd party contributory criminal charges.

Fast forward to the present. My intentions have not wavered, I still intend to run a legal website. The legal climate around me has changed, not my intent.

Furthermore, since my intent is to keep my website legal, how would I do so if I wanted to? This is not a new law passed by congress. This is an untried legal theory. Without precedence to rely on, how am I supposed to adapt and remain legal?

anonymouskiller says:

Re:

no way ,there is no way this asshole is an artist,artists dont talk like that nor do they intently rally for peoples freedoms to be taken away,not at all,and especially not so vehemently as this corpratist scumfuck does ,he must be a lawyer for either the riaa or mpaa
most artists dont care about copyright,not true artists ,they freely distribute their own work for free most of the time anyway,its only greedy talentless sellout hacks that dont,and care about copyright,they have no reason to care,well unless they have their own independent label ,cause if they dont they have already signed away all of their profit to the record label ,so it doesnt matter ,they are already getting raped ,they are already making a fixed amount,an enormously low percentage of how much money they actually bring in,they get like 3% while the record company takes the 97% of the money they make off of someone elses talent for themselves,but even still ,people like brittney spears are going out and buying 25 million dollar mansions,so if there making that kind of money only seeing a small % of what their bringing in,then the record company must be bringing in obscene money off of just 1 “artist” alone,
this asshole troll needs to go crawl back under his rock and fucking die,the fucking corporate sicophant that he is
of course he had some vested interest in the matter ,could it be any more fucking obvious,either that or he is just one of the many brainwashed american sheeple drinking the corporate kool-aid,sorry but no artist tals like that ,not even the ones who are sellouts ,ok maybe fucking douche bag lars ulrich ,(but i would hardly call him an artist)
only lawyers and corporate douche bag scumfucks like this peice of shit here

anonymouskiller says:

Re:

fuck you your are a peice of shit,calling people theiving bastards,the only reason these laws exist is because these huge corporations and riaa and mpaa bought them,they are the theiving bastards,they are stealling our right,our freedoms and our democracy,they buy off judges and politicians,buy favorable judgements for themselves ,spend millions on lobbying and lawyers (which obviously you are one)to get unfair laws passed that hurt consumers and their verry customers ,whom they are raping,but obvious not hard enough the greedy fucks,sorry i must have missed the part in the constitution that allows huge monopolies to exist and to pass overreaching copyright laws,that should be illegal,and the only reason that they arent illegal is because some monopolies with huge ammounts of power and cash ,have made the laws with their influence of our corrupt government,laws that only benefit special interests and big corporations,like rest of the laws do,so,fuck you,fuck dmca fuck super dmca,fuck coica,fuck the cyber security act,and fuck that cunt you call your mother ,your corporatist plutocrat pig

Karl (profile) says:

Re:

no way ,there is no way this asshole is an artist,artists dont talk like that nor do they intently rally for peoples freedoms to be taken away,not at all,and especially not so vehemently as this corpratist scumfuck does ,he must be a lawyer for either the riaa or mpaa

It’s true that most of my musician friends that I talked with about these seizures were horrified and disgusted.

If this AC is who I think it is (I don’t know for sure), then it’s someone who is a law student.

Still, everyone’s entitled to their opinion. Calling the guy a “douchebag” and telling him to “go kill himself” isn’t really helpful. It’s as bad as, say, claiming Mike is spreading FUD when he isn’t, or claiming that the owners of pirate sites are his “friends.”

…Oh, wait.

Anonymous Coward says:

Re:

If it’s such a “no-brainer,” why was the INDUCE Act even introduced at all? Why was it even necessary? Why did it get shelved?

The “inducement” language of that act was identical to the “aiding and abetting” language in 18 USC 2. Clearly, Congress believed that inducing copyright infringement was not covered. And decided to leave it that way.

The INDUCE ACT proposed to modify Section 501, which is a section that deals only in civil infringement. Section 501 explicitly says it does not apply to Section 506: “For purposes of this chapter (other than section 506), any reference to copyright shall be deemed to include the rights conferred by section 106A(a).”

Whether or not civil inducement liability is codified by the INDUCE Act is irrelevant in light of Grokster–it is the law of the land regardless. Moreover, that Act has nothing to do with criminal liability. Nice try though.

Karl (profile) says:

Accomplice

He knows the details of the crime in progress.

Even if he didn’t know it was a criminal act?

Furthermore, for copyright cases, “knowledge” means actual knowledge of specific infringement. Even if he “can’t reasonably of thought” that the content was licensed by others, that isn’t enough – he must have had concrete knowledge that the specific material was actually infringing.

At least, that’s the way it works in civil cases.

Karl (profile) says:

Re:

Section 501 explicitly says it does not apply to Section 506

You’re misreading it. It says 506 does not apply to the rights granted in Section 106(a), “Rights of certain authors to attribution and integrity.” Those are the “moral rights” granted solely to visual artists.

In other words, it says that there is no such thing as criminal infringement of “moral rights.”

anonymouskiller says:

Disturbing.

well i live in MA and the seatbelt thing is not a primary offense ,they can not pull you over because you are not wearing a seatbelt,they need to pull you over for something else,then if your not wearing the belt they can tack on that fine for that on top of the one for the primary offense,but you bringing up the pharma industry brings us to a great point,these copyright laws are ridiculous,and overeaching and shouldnt exist at all in the first place,i mean the pharmaceutical industry is only allowed to hold a patent on a drug for a very short amount of time,so if a drug company goes and spends billions of dollars on researching and developing a new drug,and invents a new drug and files for a patent on the formula and the molecule for the drug,they are only entitled to hold the exclusive patent/copyright for that said drug for a few short years,meaning that even though they spent billions of dollars developing the drug and have a patent that is their own legally held intellectual property,they have to release that held patent publicly ,and make all of their work and findings public knowledge,and are no longer entitled to hold a copyright/patent for intellectual property they developed,they must release their intellectual property publicly to all,including their competitors so that they can produce generic versions of the drug,that compete directly with the original,and since everyone is now required to have insurance,and insurance companies wont pay for the original drug if a generic version is available,because the generic is obviously cheaper,most of the time,unless the companies are colluding which is sometimes the case ,but we wont get into that ,the point is why should these media companies be granted unlimited indefinite coprights,why they are not spending nearly as much money do develop their products as the drug industry,and the drug industry is only allowed to hold their copyright/pattern for a few short years,they can hold theirs forever,and last i checked the limitation on drug companies not being able to hold patterns on their own created intellectual property hasnt hurt the pharmaceutical industry,in fact it is the worlds second most profitable industry,second only to the oil/petroleum industry,piracy has gone on forever ,and these media companies are not exactly hurting either,they still post record profits quater after quater,they continualy keep on merging into ever bigger conglomerate monopolies like cox,comcast,viacom etc..
that stifle competition and innovation,and trample all over consumers and their rights,so why should they be given carte blanch to hold neverending copyrights when even an industry that produces far more important products and at a much higher cost is not permitted to hold on to their intellectual property rights for even a decade,its absolutely outrageous,and you all have been conditioned through the media ,the very industry they own, to spout this crap propaganda that they have brainwashed you with ,that only serves them and is only in their best interest ,not yours,people are so stupid,stop fucking crying for these people who have everything, and make a million times more profit than they need to operate and stay a profitable busniess model,even if piracy was a million times what it is today they would still be profitable,thay would still be paying ceo and coo’s millions of dollars,all the industry puts out now is crap,pure crap anyway,oh yea little red riding hood ,theres a movie i want to see,oh no hollywood isnt running out of ideas at all,i wont even get into tv cough*jerseyshore*cough,fuck these assholes,they are controling you,they are controling the government,they control everything to be in favor of big busniess who they represent or are one in the same with msnbc,ge/nbc,disney/abc,etc.. there are only 4 of 5 companies that control ALL MEDIA,tv,movies,radio,newspapers everything,except the internet,for now,now thats why they see the internet as threat to them,they dont want people to see or hear anything they dont want them to see or hear,or that they cant charge them for,great pay them to brainwash you and feed you their propaganda some more,thats why they want to either takedown or takeover the internet at any cost,cant have people thinking for themselves now can we,oh no people capable of critical thinking,and entertaing themselves and occupying themselves with out paying money to one of the 5 major media conglomerates,(well except the 50/60 a month for cable internet access),damn you internet

anonymouskiller says:

ICE Lawsuits

well the best analogy i can give to this ,say your walking down the street and you see someone handing out a free dvd of last monday nights football game and then you walk past someone else ,and you say to them ,hey theres a guy over there handing out dvds of monday night fooball,and a cop overhears you and yout arrested for it.thats how ridiculois this is
this reminds me of the whole thing with perez hilton awhile ago,they wanted to charge him distributing child porn because someone posted a link on his blog to a site or another blog that had a picture of miley cyrus getting out of a limo where someone put a black bar over where her crotch area was,even more ridiculous,its wrong for so many reasons,first of all its not child porn,she was never exposed and even if she was the balck box was there so stll not child porn,and even if she was exposed and there was no black box and he himself posted the link to it on his blog ,he still shouldnt be able to be charged because he is only proving a link to something, its the same think as if she was sitting on a park bench spread eagle with her cootch hangin out and i said to someone “hey look over there at that slut showin her cootch”or what if there was a poster of 2 underage teenage girls haning sex ,hanging on a wall in an alley and i walk down the alley and see it,then i post in blog ,”i was walking down the alley between joes drug and dunkin donuts on main st. today and i saw a something there thats interesting ,so go there and check it out,and then i get charge with distributing child porn,its the same sort of ridiculous argument

Anonymous Coward says:

...not quite.

Umm, map and flashlight?

The content was embedded into his site. Not a link to another site, but actually as part of his pages. He was seeking to profit by including copyright violating material on his pages.

It’s not hard to see.

Embedding is the same as linking in that the infringing work never technically crosses the server of the one doing the embedding or the linking. The Ninth Circuit refers to this as the “server test” in Perfect 10 v. Google. This way, one who embeds or links is not a direct infringer because they don’t actually reproduce or distribute a work. Instead, they are helping others to infringe. In the civil law context, this leads to secondary infringement liability, and in the criminal law context, it leads to aiding and abetting.

Anonymous Coward says:

Re:

More case law for you.

The Sixth Circuit affirmed the district court’s conviction of the defendant for aiding and abetting criminal copyright infringement in U.S. v. Sachs, 801 F.2d 839 (6th Cir. 1986).

The Tenth Circuit upheld a conviction for aiding and abetting criminal copyright infringement in U.S. v. Blanton, 531 F.2d 442 (10th Cir. 1975).

The district court in U.S. v. Bodin, 375 F.Supp. 1265 (W.D. Okla. 1974), held that one who aids and abets criminal copyright infringement may be charged and convicted as a principal.

The district court in U.S. v. Dove, 2008 WL 3979467 (W.D.Va. 2008) denied a motion where the defendant argued that the jury instructions for his aiding and abetting criminal copyright infringement were flawed.

The Marx Brothers’ conviction for aiding and abetting criminal copyright infringement was affirmed by the Ninth Circuit in Marx v. U.S., 96 F.2d 204 (9th Cir. 1938).

And there are more. Let’s put this FUD about whether or not aiding and abetting criminal copyright infringement even exists to rest. It exists. And from the research I’ve just done, it appears that it’s existed since 1909.

Karl (profile) says:

Re:

More case law for you.

Excellent. I found links to the cases so that everyone here can read them. Let’s go through them:

U.S. v. Schmidt, 15 F.Supp. 804

A case from 1936, that references a section of copyright law (17 USC 28) that no longer exists. As an aside, that section made “aiding and abetting” a misdemeanor; today it’s a felony.

However, the court does also reference 18 USC 2, the “aiding and abetting” clause.

U.S. v. Sachs, 801 F.2d 839

The charge was not “aiding and abetting” infringement, it was conspiracy to infringe. From the USAM Criminal Resource Manual, 2482, “Conspiracy to commit a crime and aiding and abetting in the commission are distinct offenses.” The general conspiracy statute is in 18 USC 371, not 18 USC 2.

Conspiracy requires an even greater degree of participation than aiding and abetting. In layman’s terms, it’s used against people who are partners in crime. Defendants in these cases are typically charged with both conspiracy and aiding and abetting, probably so that the prosecuters can get a conviction as a principal, even if juries are uncertain about their status as a partner.

I doubt any jury would even consider a conspiracy charge in this case, since the defendant did not actively participate in the primary infringement.

U.S. v. Blanton, 531 F.2d 442

Conspiracy again.

U.S. v. Bodin, 375 F.Supp. 1265

Conspiracy again. Also relies on a part of copyright law that does not exist anymore (17 USC 104, previously dealing with aiding and abetting, is now about foreign copyrights). However, again, the court does also reference 18 USC 2.

U.S. v. Dove, 2008 (PDF)

This case is more relevant than the others, because it involves internet infringement. Here, the defendant was “a high-level member of an Internet piracy organization known as ‘Elite Torrents [… who] had participated in the reproduction and distribution of pirated copyrighted movies, software programs, and video games.” (Emphasis mine.)

In other words, he was a direct infringer. Accordingly, this was also a conspiracy charge – for which he was convicted.

On a separate note, this case also dealt with restitution above and beyond the criminal indictment. On a showing of actual damages, such restitution is allowed. However, the judge found that:

It is a basic principle of economics that as price increases, demand decreases. Customers who download music and movies for free would not necessarily spend money to acquire the same product. Like the court in Hudson, I am skeptical that customers would pay $7.22 or $19 for something they got for free. Certainly 100% of the illegal downloads through Elite Torrents did not result in the loss of a sale, but both Lionsgate and RIAA estimate their losses based on this faulty assumption.

No restitution was given.

Marx v. U.S., 96 F.2d 204

Again, referred to copyright law that no longer exists. Again, the “criminal infringement” was a midemeanor – the Marx Brothers did not serve any jail time (they were fined $1000, and also settled the civil suit). Furthermore, this involved a case where the Marx Brothers themselves were involved in negotiations with the defendants; they were direct participants.

Notice a trend here? Either the defendants are direct consiprators, or they were charged under “aiding and abetting” statutes that were taken out of Title 17 long ago.

It’s certainly conceivable that McCarthy will be found guilty under 18 USC 2. But I doubt that a jury would return a felony conviction absent a conspiracy charge. It’s certainly not a “no-brainer.”

So I stand by my lay opinion that the charges will be dead in the water. But we’ll see.

Karl (profile) says:

Re:

If it were that easy, every piracy site would just have a DMCA agent, and then they could do whatever they want, right out in the open, and nothing bad could happen to them. In you’re opinion, “I’ve got a DMCA agent, and we abide by all takedown notices” would be a perfect defense to copyright infringement. All due respect, Karl, but that’s not how it works. It’s ridiculous.

Section 512 explicitly says that “I’ve got a DMCA agent, and we abide by all takedown notices” is absolutely, positively a “perfect defence to copyright infringement.” Pretty much verbatim, in fact.

Your opinion of whether it is “ridiculous” does not change the fact that it is the law. If I have to live under laws I think are ridiculous, then so do you. Don’t like it, write your Congressman.

(Also, a nitpick: following takedown notices is only one rule that sites have to follow. Still, the point stands: obey 512, and you’re legal.)

Now, if you’re not a website covered under 512 (like this site), you are not exempt from liability. Obeying takedown notices should, however, make you exempt from criminal liability, since it’s a legitimate defense against willfulness.

But the guy can still get sued for his lifetime income, so it’s not like “nothing bad could happen.” The civil damages are so severe, they might even be worse than a criminal conviction for guys like this.

Anonymous Coward says:

Re:

Excellent. I found links to the cases so that everyone here can read them. Let’s go through them:

Yes, let’s go through them.

U.S. v. Schmidt, 15 F.Supp. 804 A case from 1936, that references a section of copyright law (17 USC 28) that no longer exists. As an aside, that section made “aiding and abetting” a misdemeanor; today it’s a felony. However, the court does also reference 18 USC 2, the “aiding and abetting” clause.

Yes, it references a section of copyright law that no longer exists. The point was that aiding and abetting criminal copyright infringement was the crime, no matter what statutory designation it was given. You don’t seem to understand the purpose of citing case law at times.

U.S. v. Sachs, 801 F.2d 839 The charge was not “aiding and abetting” infringement, it was conspiracy to infringe. From the USAM Criminal Resource Manual, 2482, “Conspiracy to commit a crime and aiding and abetting in the commission are distinct offenses.” The general conspiracy statute is in 18 USC 371, not 18 USC 2. Conspiracy requires an even greater degree of participation than aiding and abetting. In layman’s terms, it’s used against people who are partners in crime. Defendants in these cases are typically charged with both conspiracy and aiding and abetting, probably so that the prosecuters can get a conviction as a principal, even if juries are uncertain about their status as a partner. I doubt any jury would even consider a conspiracy charge in this case, since the defendant did not actively participate in the primary infringement.

Total reading comprehension failure. The first sentence of the case says: “Defendant-Appellant Lee William Sachs appeals from a jury verdict finding him guilty of aiding and abetting in the infringement of copyrights . . . we affirm the convictions.” Conspiracy was a separate charge, and it’s irrelevant to the point I was making.

U.S. v. Blanton, 531 F.2d 442 Conspiracy again.

Total reading comprehension failure, again. He was acquitted of the conspiracy charges, but he was convicted of the aiding and abetting charges. The Tenth Circuit affirmed. Exactly as I indicated above.

U.S. v. Bodin, 375 F.Supp. 1265 Conspiracy again. Also relies on a part of copyright law that does not exist anymore (17 USC 104, previously dealing with aiding and abetting, is now about foreign copyrights). However, again, the court does also reference 18 USC 2.

Yes, conspiracy is mentioned, but I was pointing out that case for its discussion of aiding and abetting criminal copyright infringement. The court states that it is “an offense not only to infringe a copyright wilfully and for profit but as well to knowingly and wilfully aid and abet such an infringement.”

U.S. v. Dove, 2008 (PDF) This case is more relevant than the others, because it involves internet infringement. Here, the defendant was “a high-level member of an Internet piracy organization known as ‘Elite Torrents [… who] had participated in the reproduction and distribution of pirated copyrighted movies, software programs, and video games.” (Emphasis mine.) In other words, he was a direct infringer. Accordingly, this was also a conspiracy charge – for which he was convicted.

Just because the context is the internet doesn’t make it “more relevant.” Aiding and abetting is aiding and abetting. The fundamentals don’t change depending on the context. The reason I pointed out that case, Karl, was because the jury was given instruction on–you guessed it–aiding and abetting criminal copyright infringement. The jury found him guilty.

Marx v. U.S., 96 F.2d 204 Again, referred to copyright law that no longer exists. Again, the “criminal infringement” was a midemeanor – the Marx Brothers did not serve any jail time (they were fined $1000, and also settled the civil suit). Furthermore, this involved a case where the Marx Brothers themselves were involved in negotiations with the defendants; they were direct participants.

But, they were convicted of aiding and abetting criminal copyright infringement and the Ninth Circuit affirmed, just as I indicated.

Notice a trend here?

Yes, aiding and abetting criminal copyright infringement has been around a long time. In fact, since 1909 as I indicated. The fact that conspiracy pops up in those cases is completely irrelevant.

Either the defendants are direct consiprators, or they were charged under “aiding and abetting” statutes that were taken out of Title 17 long ago.]

No, every single one of those cases I cited had someone charged and/or convicted of aiding and abetting criminal copyright infringement. Yes, statutes change. That doesn’t mean the crime of aiding and abetting criminal copyright infringement does not exist. It does. It’s a combination of 17 U.S.C. 506 and 18 U.S.C. 2, just like Brian McCarthy is charged with.

It’s certainly conceivable that McCarthy will be found guilty under 18 USC 2. But I doubt that a jury would return a felony conviction absent a conspiracy charge. It’s certainly not a “no-brainer.”

There is no conspiracy charge for the jury to look at, nor will anybody bring up the absence of such a charge because it’s irrelevant. The no-brainer, Karl, is that aiding and abetting criminal copyright infringement exists.

So I stand by my lay opinion that the charges will be dead in the water. But we’ll see.

Dead in the water in that the jury won’t convict, or dead in the water like the aiding and abetting charge isn’t even a real thing? You’re wrong either way.

Let’s look at the jury instruction in the Dove case. Keep in mind that this was a judge’s instructions to the jury in 2008:

A person may violate the law even though he or she does not personally do each and every act constituting the offense if that person ?aided and abetted? the commission of the offense. Before a defendant may be held responsible for aiding and abetting others in the commission of a crime, the government must prove beyond a reasonable doubt that the defendant knowingly and deliberately associated himself in some way with the crime charged and participated in it with the intent to commit the crime.

In order to be found guilty of aiding and abetting the commission of the crime of criminal copyright infringement charged in Count Two, the government must prove the following beyond a reasonable doubt:

First, that the defendant Daniel Dove knew that the willful copyright infringement charged was to be committed or was being committed;

Second, that the defendant knowingly and willfully did some act for the purpose of aiding the commission of the copyright infringement; and

Third, that the defendant acted with the intention of causing the copyright infringement to be committed.
The government need not prove that the defendant Daniel Dove participated at every stage of an illegal venture, only that he participated at some stage accompanied by knowledge of the result and intent to bring about that result.

Before Defendant Daniel Dove may be found guilty as an aider or an abettor to the crime of criminal copyright infringement, the government must also prove, beyond a reasonable doubt, that some person or persons committed each of the essential elements of copyright infringement as detailed for you in Instruction No. 20.

Merely being present at the scene of the crime or merely knowing that a crime is being committed or is about to be committed is not sufficient conduct for the jury to find that a defendant aided and abetted the commission of that crime.

The government must prove that the defendant knowingly and deliberately associated himself with the crime in some way as a participant-someone who wanted the crime to be committed-not as a mere spectator.

So as recently as 2008, a jury was instructed on aiding and abetting criminal copyright infringement, and that jury came back with a resounding “guilty.” 18 months for Mr. Dove. Sounds about right for Mr. McCarthy, IMO.

Anonymous Coward says:

Re:

Section 512 explicitly says that “I’ve got a DMCA agent, and we abide by all takedown notices” is absolutely, positively a “perfect defence to copyright infringement.” Pretty much verbatim, in fact.

But there is no protection if that site willfully infringes.

Your opinion of whether it is “ridiculous” does not change the fact that it is the law. If I have to live under laws I think are ridiculous, then so do you. Don’t like it, write your Congressman.

I don’t need to write anyone. You simply don’t understand the law here.

(Also, a nitpick: following takedown notices is only one rule that sites have to follow. Still, the point stands: obey 512, and you’re legal.)

Again, once you willfully infringe, the DMCA does not protect you.

Now, if you’re not a website covered under 512 (like this site), you are not exempt from liability. Obeying takedown notices should, however, make you exempt from criminal liability, since it’s a legitimate defense against willfulness.

It is not a defense against willfulness. Once you willfully infringe, you lose DMCA protection.

But the guy can still get sued for his lifetime income, so it’s not like “nothing bad could happen.” The civil damages are so severe, they might even be worse than a criminal conviction for guys like this.

He can go down criminally and civilly.

Helen Wendel says:

Why is ICE involved in Copyright infringement?

ICE is Immigration and Customs Enforcement, not Immigration and Copyright Enforcement. Since when has ICE gotten into the business of copyright enforcement? I find advertisers who embed content and mislead people so they’ll visit a “shell” website for advertising purposes to be VERY annoying and would be most glad to see those kinds of sites vanish altogether. However, I think ICE’s actions are more questionable than the persons involved. Why is ICE interested in this type of thing rather than customs and immigration, which are its areas of responsibility? Also, the site owner did not copy anything – he embedded. Is this now illegal? (News to me). I think ICE has overstepped its bounds, not that this is anything new.

Anonymous Coward says:

Why is ICE involved in Copyright infringement?

Also, the site owner did not copy anything – he embedded. Is this now illegal? (News to me).

The idea is that by embedding the videos, he’s willfully aiding and abetting others to infringe. A person who aids and abets another person to commit a crime is guilty as if he had committed the crime himself.

Anonymous Coward says:

Re:

But no matter what a rightsholder has to say about an embedded file, it has to be proven to be infringing FIRST.

Infringement, civil or criminal, does not occur just because a rightsholder says so. A court has to determine it.

This case, the domain seizures, anything Mike or any other blogger links or embeds, anything disabled by Youtube filters – they are ALL putting the cart before the horse.

Karl (profile) says:

Re:

But there is no protection if that site willfully infringes.

You keep saying that, but it’s simply not true. Nowhere is that mentioned in Title 17. On the other hand, 512 specifically says sites are not liable for “monetary relief, or […] injunctive or other equitable relief.” Nowhere in 512 is an exception for 506 mentioned. That exception simply does not exist.

You’re pretty much pulling it out of your ass because you think that’s the way the law should work. But it’s not.

If the site follows the rules, the only relief – criminal or civil – is in 512(j), “Injunctions.” And, in fact, 512(j)(3) makes it explicitly clear that ICE’s actions are not allowed:

Notice and ex parte orders. – Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity for the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider?s communications network.

No wonder they ignored it, and no wonder you seem to want that section to just go away.

Karl (profile) says:

Re:

The point was that aiding and abetting criminal copyright infringement was the crime, no matter what statutory designation it was given.

If you were pointing out that “aiding and abetting” criminal copyright infringement exists, then you’re right. If I said differently, I apologize.

If you’re trying to say that “aiding and abetting” is applicable to this case, then I believe you’re wrong.

The cases you cited all involved a much, much greater level of participation than this one. So much so, that the defendants were also charged with conspiracy.

Think about it. All this douchebag did was search for streams from other sites, and put them on his ad-supported page. He didn’t host or stream anything from his own servers. He didn’t sell access to, or copies of, the content. He didn’t upload anything himself. He didn’t encourage others to upload.

It’s exactly the same thing that a TV show fan site does, when they search for YouTube clips of that show, and post them on their blog.

If he’s guilty of aiding and abetting criminal infringement, then so are they, and so is half the internet.

Anonymous Coward says:

Re:

You are completely and totally wrong on this point. It makes you look quite clueless. If you infringe willfully, you are open to criminal liability under 506, and you have no civil liability safe harbor under 512 because that section does not protect you from your own willful acts. I could easily prove this point with case law, but I’ll just let you keep on looking silly while you pretend to play lawyer. Stick to the “noise music.” Seriously.

Anonymous Coward says:

Why is ICE involved in Copyright infringement?

So long as..

1 – a crime was comitted and/or
2 – he had reason to believe a crime was comitted

Without that how was it willfull? Perhaps a rephrase would help?
“The idea is that by embedding the videos” (that he should have reasonably believed were very likely infringing) “, he’s willfully aiding and abetting others to infring