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

from the in-their-own-words dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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out_of_the_blue says:

Money changes everything. -- Corrupts.

“It apparently doesn’t matter if you earn pennies from it, or if the money that comes in doesn’t even cover your basic costs:”

First off, as is obvious: THE draw to Rojadirect IS the infringing material. I think it a maxim in law that when you press up against the known limits, you’re in jeopardy.

No, the amount doesn’t matter! By going on at length with specific amounts (implying it’s pocket change), you don’t buttress the case for Rojadirect, but the EXACT opposite. You do that so often — as I’ve mentioned — that it seems your true intent is to make the case FOR copyright.

But a good question, IF, as you claim, they get peanuts, is how Rojadirect manages to operate at all?

AND in any case, the lesson should be that once the gov’t has you in its sights, you are pretty much done for. — No, doesn’t mean I’m for the gov’t, just recognizing a fact.

ripping_into_the_blue says:

Money changes everything. -- Corrupts.

it doesnt seem obvious to me, roja seems to be a rather full website with lots of stuff on it, not just alledged infringing material. you could use the same argument for google that its main draw is infringment, in fact its such a large draw that they were censored for it.

the amount absolutly matters, because that is the law we are talking about, thats like saying it doesnt matter how much money you make when you pay taxes, of course it does, how else do you decide how much to pay?

so when we talk about setting the bar for criminal infringment you need to be doing so “to make a profit” but if you are barely covering your operating costs you can’t be said to be making a profit.

the issue at hand is not how they afforded to operate if the site didn’t make that much money, but likely the operator has another job or wasa taking a loss, I know a few webmasters who are in similar positions.

to your very first point, the law is a firm line, not a blurry one, there is no pushing the limits, to say that one shoud be in legal peril for doing something that is legitimate is just plain stupid

and the last thing, everyone knows that when the government wants you done away with, you are generally done away with, but thats the fucking problem, the government is supposed to work for US, not against US.

Jac (profile) says:

Wait a minute...

“The government believes that if you had willful intent just to copy the content — as everyone does if you embed a video — then willfulness can be established for criminal cases.”

When I _watch_ a video online, the contents are copied from a data server to my computer. So that makes it illegal to even watch a video?

David Muir (profile) says:

Money changes everything. -- Corrupts.

The government is supposed to work for US, not against US.

Let’s remember we’ve been discussing two different cases (Dwyer and Roja) where the US federal government is going after citizens of other countries who have had their days in court and been found not guilty (twice each) under their own country’s laws.

I think it a maxim in law that when you press up against the known limits, you’re in jeopardy.

They also say ignorance of the law is no excuse. But is it incumbent upon all citizens of the world to know the lines drawn in every country and be sure not to cross — or according to you even come close to — any of them? Or is it just U.S. law that everyone needs to be particularly aware of?

Anonymous Coward says:

Money changes everything. -- Corrupts.

Maybe in that case. I can tell you that I host a lot of stuff that will be considered infringing under this interpretation of the law, and i pay for it with the sweat of my brow as an act of love for my art. The only thing that stands between me and the pit is the caprice of industrial lawyers who may tomorrow decide that they dont appreciate me anymore.

lavi d (profile) says:


I am not usually pessimistic. But I can see how the government’s War on File Sharing will continue down the same path as the War on Drugs.

The two are very similar in terms of ignorance of reality, twisted philosophy and general hypocrisy.

The War on Drugs has cost billions of dollars, ruined millions of lives and contributed to severe erosion of Constitutional liberty and loss of respect for government and the police.

It’s also turned drug production and sales into a hugely profitable business and then turned that business over to terrorist cartels and warlords.

Given that, it doesn’t take a large stretch of the imagination to see the War on File Sharing turning into an amazing bonanza for a few special interests, further limiting the rights of “normal” citizens and pushing large portions of the tech and innovation industries onto foreign shores.

What is deeply frustrating about all this is that the solution is rather simple.

The entertainment industry does not have a “right” to make money from any particular technology.

If they are losing the amount of money that they claim, then the simple answer is to abandon the technologies that are costing them money.

Stop releasing digital content!

Then it can’t be pirated.

Restrict all movies to theaters, all music to live performances and low-quality FM broadcasts.

Problem solved.

Ninja (profile) says:

Money changes everything. -- Corrupts.

That. And Rajodirecta is fully legal under Spanish law. The US are willing to interfere with Spanish sovereignty in this case and will do the same in other cases. I can see huge implications if this law is approved not only for the US. Richard’s extradition case is a good example of the US trying to make its own laws valid abroad. They are trying to make their delusions valid in Spain without any law backing them up, imagine if this comes into law?

Anonymous Coward says:


What would you say if suddenly all the drug laws were dropped? What would happen if the societal norms against drug use disappeared, because it was no longer illegal? Do you really think that you would like the results?

The war on drugs in part always works, because it maintains the notion that drugs are illegal, and keeps the vast majority of people from crossing the line. If it was all legal (or entirely unenforced) can you imagine the fun of waiting at a red light in traffic while the guy in the car next to you is slamming a speedball?

The war on file sharing isn’t at all like the war on drugs. Drugs are self destructive. File sharing works against others, there are actual victims of the crime as it were.

John Doe says:

I know you try to be nice to be heard...

I know you are being nice in an attempt to be heard, but lets face it, the intent of this bill and every other strong IP bill is exactly as you describe. It is to give big content the tools they want, I didn’t say need, to go after the little fish. After the extradite a guy half way around the world, put him in jail, fine him tens or hundreds of thousands of $$$, they expect to put the fear of God in every man, woman and child.

You see, infringement is no longer a civil matter. It is a criminal matter where big corporations can pay the government to kick down your door and haul you away at gun point.

Ninja (profile) says:


In the Netherlands the consumption of drugs spiked to fall to half of pre decriminalization levels. Care to explain how your argumentation fits to this? I lack citation atm but I’ll do some deeper research if you are the troll I’m thinking you are. It’s better to crush your arguments with citations because you fall back to personal attacks and we can laugh on your futile attempts to paint current copyright and proposed laws as good for the public.

File sharing produces as much losses as the content created is bad and/or routed through alternatives other than the classic middleman.

And drugs are destructive for every1. The drug dealing business increases violence. Check Brazilian slums controlled by the dealers. Is that only self destruction? I don’t think so.

Richard (profile) says:


The war on drugs in part always works, because it maintains the notion that drugs are illegal, and keeps the vast majority of people from crossing the line.

Not true – drugs were actually legal in most of the world until comparatively recently (the 1960s) then the US exported its prohibition laws and the problem grew worldwide.

Most people don’t take drugs because they are harmful or socially unacceptable. In some social groups the illegality increases the atteraction!

Sensible measures, short of prohibition, have largely eliminated tobacco smoking in the UK in my lifetime.

The same approach could work for cannabis/cocaine/heroin etc (as many senior policemen is the UK are now saying in private).

If the drugs laws were dropped there might be a short term bubble in usage – but shorn of the massive profits made possible by illegality the drug barons would soon move on.

Rule nunber one – don’t make laws that create CBOs (Criminal Business Opportunities)

Anonymous Coward says:


have you never heard of the swiss legalizing heroin and poviding treatment to people with an addiction(and the subsequent huge drop in heroin use)? did you know that lsd and mdma are used very successfully as therapy treatments? did you know that cannabis is the least harmful recreational drug(including tobacco and alcohol) that anyone has ever seen?

prohibition does NOT work, its been proven time and again, and anybody who says different is ignorant

David Muir (profile) says:


I think your argument lacks internal logic. You hint at the danger of unchecked drug use: a guy hitting a speedball in the car next to you. That is a clear and present danger to you as the sober driver on the road.

Then you say that the two wars are nothing alike because drugs are self-destructive (although I think you meant drug users) and file-sharing actually has a victim.

The following two paragraphs are irrelevant, but I wanted to leave them in to embellish the “harm” comparison you made:

I’ll concede that with drugs, people ruin their own lives… and there is a often (not always) a huge class distinction between drug users and non-drug users. But let’s face it: there’s collateral damage (families, drivers on the road, etc.). Yet even when mostly unchecked, drugs were used only by a minority of the population. Even today glue is perfectly legal, but MOST people don’t sniff it. We also have the experience of Prohibition to see at least a minor analogy: people still ruin their lives with alcohol today, but the majority of people don’t — and we generally don’t have tommyguns mowing down rival gangs to take over a shipment of Canadian Rye Whiskey.

I have no idea, but I believe file-sharers and copyright infringers are still in the minority too. Whose lives are being ruined is debatable: when a studio or a record producer downsizes and lets a bunch of people go, you can be sure they blame “piracy”. They would never blame an antiquated business model.

To me, lavi’s comparisons about what could happen with the war on file-sharing are less about the effects of the file-sharing itself, than about the unintended consequences of draconian IP enforcement.

In my view, he was just pointing out that the ever-upward spiraling enforcement efforts eventually become counterproductive and detrimental. One can easily draw parallels between the two wars on the “increasing enforcement and punishment” spectrum alone.

CommonSense (profile) says:


Poor naive fool…

For starters, the drug laws do not stop people from using the drugs, and a lack of laws against them would not suddenly cause people to take up the use of them. See alcohol prohibition for proof. It didn’t stop anything, and now that it’s gone, there are still people who don’t drink. Look at certain countries in Europe as well where there are more lax laws….not one of those countries has a bigger drug problem than the U.S. does.

The war on drugs, in part or in full, NEVER works. That is a fact. True education of the effects of drugs would work far better to dissuade people from using. Simply telling them “Drugs are bad, mmkay” and “Just say no!” only serve to make those things more appealing to rebellious teenagers. Those poor teenagers have only been told not to do it “Because it’s against the law!!” and that only makes it more appealing to do when they want to give authority the finger, and I think we’ve all been there. If they knew, and I mean really knew, how deep down the toilet drug use could send their lives, then and only then would they be able to make an informed, educated, logical opinion, and leave emotion out of it.

Lastly, if you don’t think you’ve ever been at a red light in traffic while the guy in the car next to you was slamming a speedball, you must either live in a town of 500 people where they only use Meth, or you’ve never paid much attention to the guy in the car next to you…. and that’s with all these laws that you misguidedly seem to think are “working”…

John Doe says:


and that’s with all these laws that you misguidedly seem to think are “working”..

That is the fallacy that most sheeple have bought into. Pass a law and everything is magically going to be ok. Prohibition didn’t work. It gave rise to the mob and NASCAR. Making drugs illegal hasn’t even come close to working as they can be had in every town large and small across the country. Anti-gun laws don’t work either. If you can get past the moral issue of killing another human being, breaking a few thousand gun laws isn’t going to bother you either.

What the laws have done is give us a near police state where they can and do trample our rights at will with little or no recourse.

jackwagon (profile) says:


It’s not illegal to drink. It is illegal to drink and drive. Same could be applied to most drugs that are illegal. And there are plenty of people driving around popping legally prescribed anti-depressants.

You’ll have to do more work to prove to me that file sharing works against others. If someone shares a song/album with me that I like, I’m more inclined pay to see/hear the artist. If not, I’ll never hear about them and they will never see my dollars.

Coreigh (profile) says:

This thread was off the rails by post #3 ...

The story is about “anti-streaming law S.978 from Senators Amy Klobuchar, John Cornyn and Christopher Coons, and how it could be Ab-used to put people in jail…”!The third poster “out_of_the_blue” makes a hard left and we’re talking about the Rojadirecta case directly. Next in post #11 “Feh” is up on two wheels making comparisons to the “War on Drugs” which drags everybody straight in to the spectator field where it all goes up in flames.
I concede most were trying to make relevant comparisons.

I enjoy TechDirt.com many salient points are made here. Does anyone know if any of our *cough* leaders read these?

– Coreigh

lavi d (profile) says:


And to expound upon my previous point – that the entertainment industry doesn’t
get to wreck the internet and degrade the Constitution because they’re
(supposedly) losing money by releasing copies:

If your dog is wandering all over town and coming home pregnant, then you need
to keep your dog in your yard. You don’t get to demand that everyone else
neuter theirs.

lavi d (profile) says:

…Feh” is up on two wheels making comparisons to the “War on Drugs” which drags everybody straight in to the spectator field where it all goes up in flames.

That’s pretty funny.

And I apologize for the (unintentional) derail.

I was just trying to make comparisons between the Fed’s ham-fisted attempts to stop “piracy” (of which SB978 is a specific example) and their same clueless attempts at stopping “drug use”.

btr1701 (profile) says:

Money changes everything. -- Corrupts.

Goddamn it. Haven’t! Haven’t crossed the limit…

Leave it to me to mistype the one word that changes the entire meaning of the post.

> I think it a maxim in law that when you press up against the
> known limits, you’re in jeopardy.

That makes no logical sense. If you have crossed the limit, then by definition what you’re doing isn’t illegal/wrong. Why would you be in jeopardy?

Aerilus says:


I would imagine that like most things people would go on doing what they are doing with little change. I would certainly not start doing drugs if the drug laws were dropped; Would You. Legalizing drugs does not mean that vehicular manslaughter is legalized or even driving under the influence which even today it still a common occurrence that proves my original statement. The only thing that would change if drugs were legal is that police going into a house could no longer arrest the individuals for being high. do drugs at work you are fired. neglect your children because you are high they are seized by social services because of neglect not drug use. Drug use is a symptom not a cause of the problems it claims. let people do what they want to do until it effects someone else that is the principle that should be in play in the war on drugs.

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