Former NSA Whistleblower Bill Binney: The NSA Is Making Itself Dysfunctional With Too Much Data
Eric Holder Wants To Stop And Frisk The NYPD

California AG Pretends Copyright Infringement Is Theft; Charges Streaming Site With Grand Theft

Copyright

from the hmm... dept

Fri, Jun 14th 2013 02:47pm -

I was a bit confused to see California Attorney General Kamala Harris announce that she, with the help of the MPAA, had broken up an “online piracy ring” that was streaming movies online. That’s because Harris has no authority when it comes to copyright issues. Copyright is a federal, not state law, and copyright cases need to be in federal court. But that’s not what happened here. Instead, she rounded up a trio of brothers, Hop, Tony and Huynh Hoang… and charged them with grand theft, conspiracy and receiving stolen property. I was wondering if there was any actual “theft” going on here, or if Harris is simply redefining theft to get around federal preemption rules for copyright infringement. From her statements, it sounds like a blatant attempt to get around federal preemption as a favor to the MPAA.

“Digital piracy is theft. It is a serious crime that harms one of California’s most important economic engines – our entertainment industry,” said Attorney General Harris. “This case sends a clear message that the California Department of Justice will investigate digital piracy and prosecute violators to the fullest extent of the law.”

Except that infringement and theft are two very different issues, which are taken care of under two very different laws. I know that the MPAA loves to call infringement “theft” but it does not make it legally “theft.”

Separately, it’s worth pointing out that the details of this case, once again show that the claims of people that various “pirate” sites are making tons of money doesn’t have much support:

Over the 18 months of the website’s operation, the brothers earned approximately $150,000 in advertising revenue.

So, 18 months, 3 brothers, $150,000. That’s $50,000 per brother. Or, about $33,000 per year, per person, not counting expenses. If the sites were even remotely popular, most of that money went towards hosting. So, not exactly a huge moneymaker.

Either way, the bigger issue here appears to be the attempt by the MPAA and AG Harris to redefine copyright law as “theft” to avoid a federal case concerning copyright. That’s an incredible attempt to change the meaning of the law, which one hopes a judge will toss out on preemption grounds. If these brothers actually did what they’re accused of, why not go after them on copyright infringement grounds? It seems likely that the MPAA has been just waiting for a case like this to try to circumvent the basic tenets of copyright law, to pretend that laws on theft apply.

Filed Under: , , , , , ,
Companies: mpaa

144 CommentsLeave a Comment
If you liked this post, you may also be interested in...
Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “California AG Pretends Copyright Infringement Is Theft; Charges Streaming Site With Grand Theft”

Subscribe: RSS Leave a comment
144 Comments
Coyote (profile) says:

Re: Re: Re: Re:

I don’t know if ‘propagandists’ is the correct term. Perhaphs realists is a better term, since all you seem to do is sprout ignorance and continue allowing yourself to be deflowered by these ‘companies’ while yet being unpaid.

I can respect a paid shill; they do their job and get paid for it, and get paid for saying the dumbest arguments so long as it’s flavored correctly. I have no respect for unpaid shills, like you, OOTB and HWNN. You essentially argue and flail about uselessly against someone like Mike, Timothy, Leigh and others , who actually do know how to debate, to argue, for what amounts to zero pay.

Now, I’m not suggesting you cannot defend something for zero pay — I do as much quite a bit, but it’s mostly limited to video games, books or even TV shows — but when that company is so blatantly anti-consumer, so blatantly trying desperately to curb people’s rights, and trying SOOO desperately to save their dying business model by sacrificing to Baphomet, I have to ask you.

Why do you settle for less?

Anonymous Coward says:

Re: Re:

You sir, are an idiot.
The article is about some-one being charged with a crime they have not commited, because the AG doesn’t have the power to charge them with what they ~may~ have commited.
This is not about copyright law being enforced, as it hasn’t been, no charges of copyright violation have been laid.

Kilabit says:

Re: Re: Re:

Looks like you’re the real idiot here. The case your cited clearly says:

” The section’s language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, [or] merchandise,” interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud”

Thanks for finding that.

Anonymous Coward says:

Re: Re: Re: Re:


Did your little blog take a hit with all your NSA articles this week?

Throwing out some Friday red meat for your pirate devotees?

He wouldn’t be milking that NSA story so much unless he was getting the clicks. It’s all about the clicks for Mikey. Truth be damned. But you’re right, he throws in the occasional anti-copyright hate/FUD pieces to keep the pirates flocking. He caters to the pirates and he knows it, and he’s too dishonest to ever discuss any of it without a bunch of weasel words. What a fake.

Anonymous Coward says:

Re: Re: Re:2 Re:

He wouldn’t be milking that NSA story so much unless he was getting the clicks.

I’d think that if all Mike wanted was clicks, he’d be writing about celebrity nipslips and the like. Writing about the NSA and copyright law doesn’t seem like the sort of thing one writes about if you’re just a traffic whore.

Anonymous Coward says:

Re: Re: Re:3 Re:

I’d think that if all Mike wanted was clicks, he’d be writing about celebrity nipslips and the like. Writing about the NSA and copyright law doesn’t seem like the sort of thing one writes about if you’re just a traffic whore.

His writing is aimed at the broad anti-IP, anti-government, lives-in-mom’s-basement types. Seems clear enough to me that he caters to a broad audience and tweaks his style/subject matter to increase traffic.

Anonymous Coward says:

Re: Re: Re: Re:

It is not about weasel words fool.
An AG is meant to KNOW the law, they aren’t meant to reinterpret it to suit their political ambitions or to help their friends. If they are infringing copyright the owners should charge them, but instead an AG who should know better has charged them with a crime they have not committed as a favour to his friends.

I hope this backfires and the AG gets the boot.
(I actually don’t care either way on the three brothers, assuming they are eventually charged with the crime they are beleived to have committed – copyright infringement)

Anonymous Coward says:

Re: Re: Re:

They have NEVER said that you can charge someone under traditional regulations regarding theft rather than copyright…

And one of the many, many points that you will never address is the fact that intangibles can be the object of theft. Typically, the claims would be preempted, and we would call it by the specific name of infringement. But the fact remains that it’s still a type of theft since theft is a very broad term. You, of course, can never discuss this on the merits. For some reason, you’re too scared to admit even obvious truths if they cut against your mindless rhetoric. Total fake, Mikey.

Karl (profile) says:

Re: Re:

the US Supreme Court itself already stated that digital piracy was “no different than garden-variety theft.”

No, they didn’t.

The quote you’re referring to is this one: “And deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft. See, e.g., 18 U.S.C. ? 2319 (criminal copyright infringement); ?1961(1)(B) (copyright infringement can be a predicate act under the Racketeer Influenced and Corrupt Organizations Act); ?1956(c)(7)(D) (money laundering includes the receipt of proceeds from copyright infringement).”

That was from a concurring opinion by Justice Breyer – not the opinion of the court.

Furthermore, the statutes he quoted to support his (dicta) claim were all copyright infringement statutes. Not a one was a statute dealing with theft, conversion, or fraud.

On the other hand, the Supreme Court, when it decided exactly this issue, said explicitly that copyright infringment was not theft, and that people who engage in piracy cannot be charged under Federal theft laws:

In contrast, the Government’s theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel. A copyright, like other intellectual property, comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections. […] Thus, the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple “goods, wares, or merchandise,” for the copyright holder’s dominion is subjected to precisely defined limits.

It follows that interference with copyright does not easily equate with theft, conversion, or fraud. […] The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially like infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.

Dowling’s conviction under 18 U.S.C. 2314 was overturned.

So, you’re 100% wrong: the Supreme Court said no such thing, and in fact explicitly said that the government cannot do exactly what the California A.G. is attempting to do in this case.

That really sucks for you, doesn’t it, asshole A.C.?

out_of_the_blue says:

Re: Re: @ "interference with copyright does not easily equate with theft"

Well, now law and gadgets have both evolved to where it DOES! The surrounding circumstances of promoting infringed content and getting advertising revenue with infringing content tip it well over the line.

That’s pretty explicit in the IsoHunt decision, even as minimized here by Mike:
http://www.techdirt.com/articles/20130321/12104822407/isohunt-still-guilty-contributory-infringem

And in ANY event, I think CA AG actions are soundly based in common law and morality. These grifters were diverting income that they had no part in creating and does not belong to them.

Anonymous Coward says:

Re: Re: Re: @ "interference with copyright does not easily equate with theft"

blue your parachute has a hole.

ISOHunt was found guilty of copyright infringement not theft.

We all want to see how the CA AG will spin that to make copyright infringement magically become theft.

The clear message here is that the CA AG is and idiot, trying to please its masters.

MrWilson says:

Re: Re: Re: @ "interference with copyright does not easily equate with theft"

I saw the article in my RSS feed. I clicked the title link to come to Techdirt. I hit ctrl+f when the page loaded. And I typed the keywords “common law.”

I knew I wouldn’t be disappointed. My reliable source of comic relief after a long day of work never fails me.

It’s just unfortunate that “common law” is now essentially the center square of everyone’s out_of_the_blue’s absurd statement bingo card. You can only claim it once regardless of how many times it comes up.

Bergman (profile) says:

Re: Re: Re: @ "interference with copyright does not easily equate with theft"

The only way I can think of that would make a copyright infringement actually BE theft is if you somehow hacked the owner’s computer and deleted all of his copies, then broke into his house and destroyed all of his hard copies as well. THEN an unauthorized copying would be theft.

Problem is, the only individual or group that has ever done anything remotely like that is the MAFIAA itself.

Anonymous Coward says:

Re: Re: Re:

Oh look, it’s Karl the Village Idiot again.

Dowling is from 1985.

Supreme Court Justice Breyer said “unlawful copying is no less an unlawful taking of property than garden-variety theft.” Just like the OP wrote.

And in 2005.

Twenty years later.

You’re a fucking idiot, Karl.

Karl (profile) says:

Re: Re: Re: Re:

Supreme Court Justice Breyer

I already covered Breyer’s comment, dipshit.

Are you seriously suggesting that Breyer’s intent was to overturn Dowling?

And I’m the fucking idiot?

Just like the OP wrote.

No, he didn’t. He said that copyright infringement was “no different than garden-variety theft.” Not that it was “no less” than garden-variety theft, but that they were one and the same thing under the law.

And he was doing it to justify the California A.G. bringing theft charges, not copyright infringement charges, against the site owners.

He is wrong, and an entire Supreme Court case that focused only on this specific issue showed that he is wrong.

Assuming “he” is not you, of course.

Anonymous Coward says:

?Digital piracy is theft. It is a serious crime that harms one of California?s most important economic engines ? our entertainment industry,? Harris said. ?This case sends a clear message that the California Department of Justice will investigate digital piracy and prosecute violators to the fullest extent of the law.?

LoL… fortunately, at some point, someone involved here is going to have to actually read said law.

Nigel

Anonymous Coward says:

“most of that money went to hosting”

So of course that’s why they went to the trouble of running the sites, right Mike? They wanted to donate their time?

Actually the reality is you don’t know for a fact what their hosting fees were. And you didn’t try to find out. Because you’re a blatantly dishonest slime ball that is under the delusion that people actually believe your bullshit.

Anonymous Coward says:

I am sorry for the 3 brothers there, but this really put a smile on my face.

People in law enforcement are really getting desperate.

One can only hope that the law is followed and this nonsense gets thrown out of court.

Also copyright infringement a serious crime?

LooooooooooooooooooooooooooooooooooooooooooooL

Is it a bigger crime than tax evasion?
Creative accounting?
Lying to congress?

California AG really has its priorities straight.

She should be careful though, both actors that played the Joker died already, that role is cursed.

Anonymous Coward says:

Except that infringement and theft are two very different issues, which are taken care of under two very different laws. I know that the MPAA loves to call infringement “theft” but it does not make it legally “theft.”

Oh look, conclusory statements by the wannabe-pirate-lawyer Mike Milkman Masnick. Run us through the analysis, counselor. Does theft under California law have an extra element that would make it not preempted? Don’t you think the California AG has some knowledge of how preemption works? Have you bothered to read the indictment? Do you even know what section they are charged under? Of course not.

Separately, it’s worth pointing out that the details of this case, once again show that the claims of people that various “pirate” sites are making tons of money doesn’t have much support: Over the 18 months of the website?s operation, the brothers earned approximately $150,000 in advertising revenue.

I love how Pirate Mike protects his kin by pretending that $150,000 over 18 months is not a lot of money. That’s probably more than anyone in your fan club makes. Hilarious!

Either way, the bigger issue here appears to be the attempt by the MPAA and AG Harris to redefine copyright law as “theft” to avoid a federal case concerning copyright. That’s an incredible attempt to change the meaning of the law, which one hopes a judge will toss out on preemption grounds. If these brothers actually did what they’re accused of, why not go after them on copyright infringement grounds? It seems likely that the MPAA has been just waiting for a case like this to try to circumvent the basic tenets of copyright law, to pretend that laws on theft apply.

Give us the actual legal analysis, Counselor Mike.

Anonymous Coward says:

Re: Re: Re:3 Re:

And that’s somehow less mature than “Bawk bawk bawk”.

I’m not being mature when I taunt Mikey-Poo. I’m shitting on him in his own house and he’s too scared to even defend himself. It’s awesome fun for me, but it’s certainly not me being mature. Mike doesn’t deserve maturity. He deserves ridicule and lots of it.

Anonymous Coward says:

Re: Re: Re:

Enough with the attacks. Maybe you’ll get Mike to listen to you if you got rid of the name calling and acted a bit more mature.

Nope. I’ve tried that hundreds if not thousands of times. Mike has proved beyond a reasonable doubt that he has no intention of discussing the stuff he writes about on the merits. All he gets now is my deepest contempt. If he wants me to stop attacking him, he needs to show me that there is even one honest cell in his body. I see no evidence of that.

Karl (profile) says:

Re: Re: Re: Re:

I’ve tried that hundreds if not thousands of times.

Not once have you interacted with Mike, where you didn’t insult him and lie about him.

Not once.

As usual, you’re the only one here who doesn’t have “even one honest cell in his body.” You’ve proved this over and over and over again.

Enjoy your delusion that refusing to interact with a lying, petulant asshole is the same as refusing to discuss something “on the merits.” I’m sure it helps you sleep at night.

Anonymous Coward says:

Re: Re: Re:2 Re:

“I’ve tried that hundreds if not thousands of times.”

Not once have you interacted with Mike, where you didn’t insult him and lie about him.

Not once.

As usual, you’re the only one here who doesn’t have “even one honest cell in his body.” You’ve proved this over and over and over again.

Enjoy your delusion that refusing to interact with a lying, petulant asshole is the same as refusing to discuss something “on the merits.” I’m sure it helps you sleep at night.

Oh, look. Marcus has a rival for the title of Head Suck-up. What an unctuous salad tosser you are Karl.

John Fenderson (profile) says:

Re: Re: Re: Re:

Nope. I’ve tried that hundreds if not thousands of times.

You have??? I’ve never seen you try that even once. OK, I’ll be fair, maybe once or twice a long time ago…

…but then, Mike did indeed try having a rational discussion with you of the very sort you claim that you can’t get, but you rapidly devolved into your usual vitriol.

I’m pretty sure that’s why Mike ignores you. You are incapable of have a rational discussion.

TC says:

Criminal copyright infringement may not be preempted

Actually, although the US copyright law very clearly preempts most state copyright law (other than pre-1972 sound recordings) in a civil context, it is not at all settled that it applies in a criminal context, as here. The text of the law is “no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State”; and whether that applies to criminal law is an unsettled issue.

In New Hampshire v. Nelson, a 2004 NH state case and the most recent case I know in this area, a criminal conviction was upheld for “receiving stolen property” where the stolen property was a scan made of a photo.

Anonymous Coward says:

no doubt. and a dollar says they will miraculously find a judge who is sympathetic to the cause, just as one was miraculously found in Sweden for the Spectrial of TPB4. he will rule in favour of the MPAA, rewriting the law as he goes, just as the entertainment industries have changed ‘innocent until PROVEN guilty’ to ‘guilty unless you can afford to be defended’ so the crime becomes grand theft, just like the AG (a person who is supposed to know, respect and obey the law, remember!!) wants the charge to be, because he hasn’t got the balls to do otherwise and upsetting them would mean a longer trial and no golf at the weekend! when the appeal goes through, it will be delayed intentionally so that the brothers run out of the $ millions the MPAA state they are certain was received for the infringing activities and when no defense is left, they will be fined an incredible amount which is greater than all the wealth in the world and a50years in prison, as copyright infringement, file sharing is no so heinous a crime, that civilization as we know it will cease to exist if any shorter a sentence is even thought of! i appreciate that laws are made to be broken, but that shouldn’t be done by those that are supposed to be the greatest upholders of the law. they’re not supposed to rewrite them to become what they want them to be at the time, just because they want to go through the revolving door from government employee to entertainment industries bitch!i mean, come on!!

out_of_the_blue says:

Yes, Mike, infringement IS a form of theft.

From the Pirate Paster above: “Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud” — And so? Mugging is less complex than wire fraud, but both are still theft.

Evidently that a variety of acts exist which can all be called “theft” is too complex for Mike and the pirates.

This is all laid out in the IsoHunt case, which I thought Mike understood as HUGE defeat for the notion that infringement or even hosting infringed files IS a form of theft, but he simply doesn’t learn.
http://www.techdirt.com/articles/20130321/12104822407/isohunt-still-guilty-contributory-infringement.shtml
(Note that at comment #4, I, ah, don’t go into extraneous detail, just do some crowing. The fanboys can’t stand it.)

out_of_the_blue says:

Re: Re: Yes, Mike, infringement IS a form of theft.

@ IsoHunt was never found guilty of theft. (Nor even charged with theft.)

They were found guilty of civil copyright infringement.”

Certainly they are guilty of theft! Commercial infringement is a FORM of theft. They’re gaining off someone else’s intellectual property, which is DEFINED by ALL of copyright to BE theft!

You’re just splitting hairs. Common law, in my opinion, directly equates commercial scale infringement under these circumstances with theft. Copyright exists precisely to prevent THIS specific TYPE of theft! — I’m afraid YOU will never get that point, but it’s perfectly obvious to anyone not trained in how to dodge the law, or seeking to steal what’s clearly not theirs.

Karl (profile) says:

Re: Re: Re: Yes, Mike, infringement IS a form of theft.

Commercial infringement is a FORM of theft.

Not according to either the Federal statutes or the Supreme Court, it’s not.

Common law, in my opinion, directly equates commercial scale infringement under these circumstances with theft.

Your opinion is wrong.

First, copyright law is not based on common law, as I’ve already made very clear to you:
http://www.techdirt.com/articles/20130412/16073622693/julie-samuels-favorite-techdirt-posts-week.shtml#c618

Second, even if you consider state statutes to be “common law,” no state has ever equated copyright infringement with theft. They’ve always been considered two separate things.

One major difference is that theft laws are always criminal (either misdemeanors or felonies). Copyright infringement has always been primarily a civil infraction.

That’s why IsoHunt was never found guilty of any criminal act. They only faced civil liability.

TheLastCzarnian (profile) says:

And so it ends...

So the MPAA and the AG have become so desperate that they would try to charge a copyright infringer with grand theft.
Pathetic. This is, however, the kind of thing that happens right before a massive change. The backlash from this will probably be extreme, if it gets to the media as it should.

Sorry, trolls, but AG’s do not get to make up new definitions for old crimes for which they have no jurisdiction.

Violated (profile) says:

Re: Re: And so it ends...

Damned system lost most of my posting so let me type it all again…

Yes we are deep in prohibition where the Government actively fights against the mass will of the population. Their attempts to maintain control become ever more desperate as the World changes around them.

The truth about streaming can be seen in the RojaDirecta case when after 3 strikes they are still not out. The DoJ losing against them in US Court sure removes the “willful” aspect in any US business that follows RojaDirecta’s lawful streaming example.

So now they try anything to censor and to contain people sharing media. They obviously cannot win against public demand for long.

The World is soon to change. Most people realise that Copyright has gone too far where it needs to be curtailed to prevent such abuses. Evidence shows that sharing is not economically harmful so why try to stop people’s chosen freedom to enjoy entertainment?

Zakida Paul (profile) says:

How did I know the idiots would be out in force on this one?

You know what is really theft? Copyright is theft. Theft of culture. Theft from the public domain.

Copyright is a very 20th century concept, a government granted monopoly that gives control of culture to a small group of people. It goes against everything that culture is about.

Music/literature/art was all created, enjoyed and shared freely for millennia before copyright came to be. We need some serious scaling back of copyright terms and we need massive expansion of fair use.

Anonymous Coward says:

I could see this as boosting VPN sales for California users. The “receiving stolen property” count could make it a criminal offence in California to view streams. This could cause viewers of streams to use a VPN to avoid being nicked in California.

Even Klobuchar’s felony streaming bill never went that far. She was very careful to write her bill to where viewers of streams would not be committing a felony.

Violated (profile) says:

Feeble

I am sure even the MPAA are laughing at her. “Wow what a stupid woman” they all think.

Sure enough this case will soon crash and burn the moment it is pointed out in Court that Copyright Infringement is not actually Theft. As a result trial in state Court is therefore denied being a Federal law.

Still the MPAA would be happy when their goal is to destroy where this case well highlights how well their propaganda works to fool the weak minded.

California may well need a new Attorney General when Kamala Harris clearly does not know her laws. Her and VP Joe Biden now have something in common… lack of brain cells.

Anonymous Coward says:

In the meanwhile Kickass Torrents domain kat.ph was seized and they just shifted to http://kickass.to/.

Every pirate operator appears to have realized how important LLC’s are, even the Prenda Dream Team are aware of that because they use the same legal gimmicks to stay in business, but the similarities end there, while nobody knows who the operators of Kickass torrents are everyone is clued as to who Prenda and their sudo names are.

Piracy it seems is unstoppable, will ootb and AJ put an end to this shameful state of affairs?
Do not miss the next episode on the Piracy Wars 6900 (read it like 69 double ohw)

horse with no name says:

Come on

What, $150,000 for hosting, but they don’t host the content, right? Or wait, do they host the content?

Seeing this tried as grand theft will be very interesting, and in California which is movie land, it’s possible it might actually make it through the courts.

Can you imagine the egg on everyone’s face around here when a court does find copyright violation to be theft? Damn, you guys would really tie yourselves in knots trying to get out of that one.

I cheer this case on, just to see Mike try to get out of the logical hole.

Anonymous Coward says:

Re: Come on

Apparently you don’t understand what preemption is. The feds don’t like it when the states try to take their power from them and call it their own. Supreme Court is the final arbiter, and they’ve already spoken to this exact thing back in 1985. Good luck trying to explain that away.

Karl (profile) says:

Re: Re: Re: Come on

The supreme court ruled on online piracy in 1985?

The Supreme Court ruled on all piracy in 1985, whether online or not.

And they ruled that copyright infringement is not “theft, conversion, or fraud,” and that you can’t be charged with any of those things for copyright violations.

They didn’t have to rule on preemption, since Federal copyright laws have preempted state copyright laws since 1976. Meaning that if you infringed on any work that is covered by Federal copyright law, you can only be charged under the Federal copyright statutes.

But, of course, the California D.A. doesn’t want to do that, because it would probably turn out like the myVidster case.

Anonymous Coward says:

Re: Re: Re:2 Come on

Dowling was not a “preemption” case since Dowling was being prosecuted under a federal criminal statute. The court did not rule that copyright infringement was not “theft” as a normative matter. What it did rule is that for purposes of the specific statute before the court the word “theft” as used in the statute was not intended, and should not be interpreted, to encompass copyright infringement. Had the statute been worded differently, the outcome may very well have been that such actions comprised theft and could be prosecuted under the statute. A word of caution regarding “preemption”. Congress has certainly invoked preemption in civil cases, vesting exclusive jurisdiction with the federal courts, but with stated caveats. Criminal matters are not explicitly limited. Thus, there must be more to any preemption analysis associated with criminal law than attempting to extrapolate same from the civil law provisions. This analysis must start with the specific provision of California law that is being asserted, which provision as yet remains unstated.

Karl (profile) says:

Re: Re: Re:3 Come on

Dowling was not a “preemption” case

I meant that the Supreme Court didn’t have to decide it in any case, since it is a matter of black-letter law.

The court did not rule that copyright infringement was not “theft” as a normative matter.

I’m not sure what you mean by “normative matter” in this instance, since criminal acts must be explicitly defined by statute.

Criminal matters are not explicitly limited.

Where do you get that? Here is the relevant text from 17 USC 301:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

There’s no distinction made between civil and criminal laws. The only rights and remedies that are allowed, as a matter of black-letter law, are the ones granted in Title 17.

Anonymous Coward says:

Re: Re: Re:4 Come on

See: 28 USC 1338

17 USC 301 addresses the scope/type of rights that may be associated with state law, but it is not a jurisdictional statute. This is where 28 USC 1338 comes in with respect to civil actions.

Criminal matters are left dangling by the terms of the statute. There is case law out of the 11th Circuit (Crow v. Wainwright) that deals with a state’s entitlement to prosecute matters that may be associated with materials secured by copyright law. Clearly 17 USC 301 presents a formidable hurdle based upon interpretive case law as represented by the Crow decision, but the scope of 301 is sufficiently “fuzzy” that states may be deemed to have some (currently unidentified) retained role.

Here we do not have any way of analyzing what the state is attempting to do without having in hand a reference to the state statute being asserted.

Karl (profile) says:

Re: Re: Re:5 Come on

17 USC 301 addresses the scope/type of rights that may be associated with state law, but it is not a jurisdictional statute.

I don’t see how you could say it is not a “jurisdictional statute” when, quite clearly, its entire reason for existing is to preempt state actions. Every court that mentions it calls it “an explicit preemption provision” (or something along those lines).

There is case law out of the 11th Circuit (Crow v. Wainwright) that deals with a state’s entitlement to prosecute matters that may be associated with materials secured by copyright law.

Wait… the case that ends with this quote?

The proper method of analysis is to examine whether the elements of a cause of action for the tort of copyright infringement are equivalent to the elements of the crime of dealing in stolen property as it applies in this case. Despite the name given the offense, the elements essential to establish a violation of the Florida statute in this case correspond almost exactly to those of the tort of copyright infringement. […]

Section 301 clearly prohibits Florida from prosecuting Crow in this case, and we conclude that Crow’s conviction is null and void. We therefore REVERSE this case and REMAND it to the district court with instructions to grant the writ of habeas corpus.

Seems pretty clear-cut to me. I could hunt down other cases that said the same thing, if you want.

Can you find even one court that said that the State could prosecute for actions that were covered entirely under Federal copyright law? I’ve never heard of one.

PaulT (profile) says:

Re: Re:

Most people who run an operation of any substantial size.

The company I work for pays roughly ?10,000 (around $16,000) per month for hosting around 30 dedicated servers on a colocated basis. A quick check on a randomly selected hosting site (Rackspace) shows one option of $1249 for a managed dedicated service with 2TB bandwidth included. It would be quite easy to top $8000 if you need beefy multiple servers with high bandwidth usage. Given that the site in question is a streaming site, that’s certainly the case.

Milton Freewater says:

Maybe it was grand theft ...

Did the brothers steal the movies, or have the movies stolen for them, before they streamed them?

It’s possible these charges are not for the (possible) copyright infringment part of their activities.

Could be this is similar to the old “bust Al Capone for tax evasion” technique.

The article doesn’t identify what actions were labeled “grand theft.” Certainly Dodd does his best to imply that the infringement was the theft they’re being charged with, but maybe he’s just lying as usual.

Leave a Reply to Anonymous Coward Cancel reply

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Former NSA Whistleblower Bill Binney: The NSA Is Making Itself Dysfunctional With Too Much Data
Eric Holder Wants To Stop And Frisk The NYPD
Follow Techdirt

Techdirt Daily Newsletter

Ctrl-Alt-Speech

A weekly news podcast from
Mike Masnick & Ben Whitelaw

Subscribe now to Ctrl-Alt-Speech »
Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...