Torrent-Finder Plans To Fight Domain Seizure

from the testing-prior-restraint dept

I had mentioned recently that I fully expected at least one or two of the owners of the domain names seized by Homeland Security to challenge the seizures. While the government seemed to think that these sites were so "obviously" infringing that no one would dare challenge the seizures, that seemed hard to believe.

And, in fact, it appears that the operators of Torrent-Finder, a pure search engine that hosts no infringing content, are planning to challenge the seizure, and have hired a lawyer for that purpose. To be honest, I think that the various hiphop blogs that were seized may have a stronger case. I actually think that Torrent-Finder has a pretty strong case as well, but as we've seen in our own comments, it's easier for folks who don't understand how search engines work to automatically assume Torrent Finder must be illegal because people use it to find infringing content.


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  1.  
    identicon
    Anonymous Coward, Dec 9th, 2010 @ 4:04pm

    .torrent = .crime

     

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  2.  
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    Anonymous Coward, Dec 9th, 2010 @ 4:21pm

    Re:

    This is where "branding" is a bad thing.

     

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  3.  
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    lostalaska (profile), Dec 9th, 2010 @ 4:21pm

    Google?

    I use Google to find most of my questionable material... I'm wondering what the actual difference is, besides billions of dollars and a stable of lawyers.

     

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  4.  
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    average_joe (profile), Dec 9th, 2010 @ 4:29pm

    I actually think that Torrent-Finder has a pretty strong case as well, but as we've seen in our own comments, it's easier for folks who don't understand how search engines work to automatically assume Torrent Finder must be illegal because people use it to find infringing content.

    Sometimes I feel your comments are pointed at me. :)

    Do you find it hard to believe that there was probable cause that torrent-finder was being used for criminal infringement? I don't. I'm glad they're challenging this. I really am.

     

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  5.  
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    Anonymous Coward, Dec 9th, 2010 @ 4:33pm

    Re: Google?

    The differences are obvious, but they are ones that the TD regulars tend to want to ignore.

    Google is not specific to any one topic. Google does not list only torrents, or only bomb making sites, or only flower pruning sites. They list all sorts of things. More importantly, except in exceptional cases, they don't filter things out.

    The average Google search does not turn up almost exclusively illegal material in all of the entries.

    A torrent search / finder / locator / list is exclusively torrent files. The vast majority of the files that you can find on torrent searches are illegal, and the vast majority of searches on a torrent site would return nothing but illegal materials.

    In fact, outside of the few exceptional cases (such as certain open source distributions), you would be hard pressed to actually find legal material.

    The torrent finder site owners are aware of this, and choose to ignore it. Yes, you can search google and find illegal material, but it is a question of scale. Most searches on Google do not provide you direct access to significant amounts of illegal material.

    There are very few torrent sites out there with nothing but legal material, and I doubt that many people on here could name them, because they are rarely visited.

     

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  6.  
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    Spaceman Spiff (profile), Dec 9th, 2010 @ 4:58pm

    .gov == .corrupt
    .bank == .thief
    .dhs == .idiot

     

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  7.  
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    Anonymous Coward, Dec 9th, 2010 @ 4:59pm

    Re: Re: Google?

    > There are very few torrent sites out there with nothing but legal material, and I doubt that many people on here could name them, because they are rarely visited.

    Jamendo
    VODO (where Pioneer One was released)
    LegalTorrents

    These all from memory (without searching Google for examples) and excluding the Linux ISO ones (torrent.ubuntu.com:6969 and torrents.fedoraproject.org, both also from memory).

    I would not call Jamendo "rarely visited". I also have seen it mentioned a lot in comments on this site, so I guess many people on here could name it.

    And this without counting the "legal" files released directly to "mixed" torrent sites (which have a mix of what you would call "legal" and "illegal") such as ThePirateBay. I read more than once about people releasing things like their own music on these sites.

    You are also missing a small detail: Google has "filetype:torrent", which was added by their engineers specifically so that you could search for torrent files and only torrent files. A lot like the site mentioned here.

     

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  8.  
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    fogbugzd (profile), Dec 9th, 2010 @ 5:07pm

    Re:

    I stopped at a convenience store over the weekend. They had a big selection of wrapping papers, incense, oddly-shaped glass vases that could be assembled in interesting ways, and little tiny plastic bags that would be the perfect size for holding small amounts of meth or rocks of crack. They also had the biggest collection of sweets and munchies that I have ever seen in a convenience store.

    It was pretty obvious who the shop was catering too, and most of the products I saw were going to be used in association with illegal activities. A cop came in while I was there. He bought a candybar and took a hard look at me.

    What the store was selling wasn't illegal. Apparently the police are using it as a source of information. I assume the cop probably ran my license plate before he came in.

     

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  9.  
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    AR (profile), Dec 9th, 2010 @ 5:31pm

    Ban sports retailers?

    Shutting down search engines just because some people use them to search for things is just wrong. Not all torrents are "illegal" or "infringing" (just as not all mp3's, avi's, pdf's, and zip's are "illegal" or "infringing").
    That would be similar to banning sports retailers for selling baseball bats, just because some people use ball bats to beat other people with. Like a homeowner who grabs one when their house is being broken into.

     

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  10.  
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    bigpicture, Dec 9th, 2010 @ 5:38pm

    Re: Re: Google?

    There are thousands of movies whose content shows you how to do illegal things. Does that mean that they should shut down Hollywood? When the PTB publish the security vulnerabilities at various sensitive locations, informing all the terrorists how to exploit these, does that mean that the people who work at these places should shut the PTB down?

     

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  11.  
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    Anonymous Coward, Dec 9th, 2010 @ 6:08pm

    Re: Re:

    But you see, the convenience store wasn't called "crack dealer equipment company", and they didn't have only crack dealer equipment. It is an amusing example that just makes the point.

     

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  12.  
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    Anonymous Coward, Dec 9th, 2010 @ 6:20pm

    Re: Re: Re:

    >>But you see, the convenience store wasn't called "crack dealer equipment company", and they didn't have only crack dealer equipment. It is an amusing example that just makes the point.

    And TorrentFinder isn't called "Pirated Music and Movies Company."

    You perfectly illustrate the mindset of the industry is that "torrent" is synonymous with pirated software. That is not the case. TorrentFinder just points to where you can get files to transfer. Some of those files are illegal to transfer, but a lot of them are legitimate.

     

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  13.  
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    Anonymous Coward, Dec 9th, 2010 @ 6:22pm

    Re: Re: Re:

    What point does it make?

     

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  14.  
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    Anonymous Coward, Dec 9th, 2010 @ 6:40pm

    Re: Re: Google?

    The site has an interesting TOU.

    Of course, running a forum doesn't help.

     

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  15.  
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    Anonymous Coward, Dec 9th, 2010 @ 7:38pm

    Re: Re: Google?

    Your comparison to the "average Google search" is meaningless. Compare to a Google search with filetype: torrent (or even just the word torrent in many cases) and you'll find similar results to a specialized torrent search engine.

     

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  16.  
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    Mike Masnick (profile), Dec 9th, 2010 @ 10:02pm

    Re:

    Do you find it hard to believe that there was probable cause that torrent-finder was being used for criminal infringement? I don't. I'm glad they're challenging this. I really am.

    So, the trick to building a legal torrent search engine is just to make sure it also searches for other stuff? Seems like an odd sort of reasoning.

     

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  17.  
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    Chargone (profile), Dec 9th, 2010 @ 10:14pm

    Re: Re:

    that and slavery, yah.

     

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  18.  
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    Chargone (profile), Dec 9th, 2010 @ 10:16pm

    Re: Re: Re: Google?

    also world of warcraft's patching system worked this way, last i looked. not sure if it entirely counts, however.

     

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  19.  
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    btrussell (profile), Dec 10th, 2010 @ 2:55am

    Re:

    People make/post/upload .torrent files same as .doc files.
    Search engines locate them for you.

     

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  20.  
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    Darren (profile), Dec 10th, 2010 @ 3:06am

    Re: Re:

    I guess a virtual comparison would be an industry-sponsored torrent search engine. Remember BIONIC from "Pump up the volume"? Good times.

     

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  21.  
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    PaulT (profile), Dec 10th, 2010 @ 3:40am

    Re: Re: Google?

    "More importantly, except in exceptional cases, they don't filter things out."

    Neither do the torrent sites. Why do you support this position for Google, but not for torrent sites?

    "The average Google search does not turn up almost exclusively illegal material in all of the entries."

    Depends on your definition of "legal" and "average". You can find illegal material on virtually any search, and the ratio depends on what you're searching for. e.g. - search for "nosferatu", and you'll get a lot of links to information on a public domain film including many legal free copies of said film. Search for "download inception", you'll get a lot of illegal links. You'll get the same ratio on most torrent sites as well.

    "A torrent search / finder / locator / list is exclusively torrent files"

    A great many of which are 100% legal, and even encouraged by the copyright holders.

    "In fact, outside of the few exceptional cases (such as certain open source distributions), you would be hard pressed to actually find legal material."

    This is demonstrably horseshit. You can find legal material on any torrent site, ranging from CC licensed music and movies to public domain material and free software, including patches for commercial games.

    "The torrent finder site owners are aware of this, and choose to ignore it"

    OK, genius, tell me this. How, exactly, can a third party search engine know what's illegal and what's not? Answer: they can't. It's virtually impossible for anyone who is not the copyright holder to know the exact copyright status of a file, and that's assuming they know the content (which they don't, as the filename may not reflect its content). Hell, as demonstrated by some recent court cases, even the copyright owners can be confused about what they actually own, let alone a 3rd party in a foreign country.

    "here are very few torrent sites out there with nothing but legal material, and I doubt that many people on here could name them, because they are rarely visited."

    Name a single general purpose search engine that can accurately filter copyrighted content. You can't, because there isn't one, and building an accurate one is impossible. The only difference between Google and a more general purpose search engine is that the torrent sites only search one type of file. But that doesn't necessarily mean they support piracy, any more than Google's image search supports copyright infringement when you search for a movie's poster and get thousands of potentially infringing copies of that image.

     

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  22.  
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    PaulT (profile), Dec 10th, 2010 @ 3:48am

    Re: Re: Re:

    "the convenience store wasn't called "crack dealer equipment company", and they didn't have only crack dealer equipment"

    The site wasn't called "illegal downloads" and they didn't only link to infringing material.

    "It is an amusing example that just makes the point."

    That whooshing sound you heard? That was the point flying over your head.

     

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  23.  
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    Anonymous Coward, Dec 10th, 2010 @ 4:18am

    a .torrent file is NOT illegal

    There is nothing illegal about a .torrent file. It is a small binary file which contains a link and a hash. There is no 'copyrighted' material contained in the file, and there's no reason why you shouldn't be allowed to search and d/l .torrent files to your heart's content. The 'infringement' doesn't actually happen until you decide to use the .torrent file in a .torrent program to download the actual content from the hive cluster.

     

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  24.  
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    average_joe (profile), Dec 10th, 2010 @ 5:42am

    Re: Re:

    So, the trick to building a legal torrent search engine is just to make sure it also searches for other stuff? Seems like an odd sort of reasoning.

    I can't help but point out that you didn't at all answer my question.

     

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  25.  
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    Gabriel Tane (profile), Dec 10th, 2010 @ 5:56am

    Re: Re: Google?

    "The differences are obvious, but they are ones that the TD regulars tend to want to ignore."

    We don't ignore it... we just realize it's moot. What we look at is this: if Torrent-Finder is shut down, pirates and downloader’s will just switch over to Google. Regardless of whether TF is illegal or not, nothing will be accomplished by shutting it down. Like shutting down the 'adult section' of Craigslist, this will only move the target deeper underground.

    I don't know why we keep letting the government play with the internet... I don't let my kids play with guns for a reason.

     

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  26.  
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    Big_Mike (profile), Dec 10th, 2010 @ 5:57am

    Porn

    Porn is not aloud to be searched for at work. Should Google be banned from work because you can use it to search for it?

     

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  27.  
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    Anonymous Coward, Dec 10th, 2010 @ 6:19am

    Re: Re: Google?

    The vast majority of people speed while driving. Should we make roads illegal as well?

     

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  28.  
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    Anonymous Coward, Dec 10th, 2010 @ 6:23am

    Re: Re: Re:

    No one finds it hard to believe that "criminal justices" professionals such as yourself can find probable cause for anything if it suits them.

    Your question was pointless and irrelevant and I can't help but notice that you love to try controlling the conversation with "questions" that "must be answered." Stupid debate tricks are for stupid lawyers

     

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  29.  
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    average_joe (profile), Dec 10th, 2010 @ 6:24am

    Re: a .torrent file is NOT illegal

    There is nothing illegal about a .torrent file. It is a small binary file which contains a link and a hash. There is no 'copyrighted' material contained in the file, and there's no reason why you shouldn't be allowed to search and d/l .torrent files to your heart's content. The 'infringement' doesn't actually happen until you decide to use the .torrent file in a .torrent program to download the actual content from the hive cluster.

    Sure, you can download all the .torrent files you want, and that's not infringement. But we all know that the .torrent files torrent-finder is helping people locate are for the primary purpose of infringement. A court will see right through that smoke screen. This reminds me of a footnote I read the other day in Columbia Pictures v. Fung:

    The fact that the dot-torrent files automatically cause content files to be downloaded and assembled ( see also supra Part II.A) rebuts Defendants' assertions that users' act of downloading dot-torrent files does not constitute actual copyright infringement. It may be true that the act of downloading a dot-torrent file is not itself a copyright-infringing action; but once that dot-torrent file triggers the process of downloading a content file, copyright infringement has taken place. Because dot-torrent files automatically trigger this content-downloading process, it is clear that dot-torrent files and content files are, for all practical purposes, synonymous. To conclude otherwise would be to elevate form over substance.

     

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  30.  
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    Gabriel Tane (profile), Dec 10th, 2010 @ 6:33am

    Re: Re: a .torrent file is NOT illegal

    "Sure, you can download all the .torrent files you want, and that's not infringement. But we all know that the .torrent files torrent-finder is helping people locate are for the primary purpose of infringement."


    Please stop speaking for me when you take your assumptions and label them as 'facts'. You're trying to make an argument that there is no legitimate material available through .torrent and that's just plain wrong.

    "We" don't "all know that" the torrents found through TF are illegal... you presume so.

     

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  31.  
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    average_joe (profile), Dec 10th, 2010 @ 6:37am

    Re: Re: Re: Re:

    No one finds it hard to believe that "criminal justices" professionals such as yourself can find probable cause for anything if it suits them.

    Your question was pointless and irrelevant and I can't help but notice that you love to try controlling the conversation with "questions" that "must be answered." Stupid debate tricks are for stupid lawyers


    The issue is the seizure of torrent-finder.com based on probable cause. My question is very much neither pointless nor irrelevant. Mike was trying to make this about torrent search engines in general, and you are trying to make this about probable cause in general. Let's not talk in generalities. Let's talk about torrent-finder explicitly. Makes sense to me.

     

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  32.  
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    Anonymous Coward, Dec 10th, 2010 @ 6:37am

    This is a nightmare. No due process. No cease and desist. You are an infringer so you have no rights. This is Nazi Germany at it's worst and we need to violently revolt against it and quickly. I am no criminal and I feel that I need to go underground and try to escape my government. Do these idiots really think they can't be brought down? It is part of my mandate as an American Citizen to create a militia to protect my country and if Homeland Security declares itself to be an enemy of my country as they are exhibiting now, so be it. It is time to get your loyalties straight. My loyalty is not to the Republican, Democratic, the Tea Party or any other stupid group of fanatics. My loyalty is not to Jesus Christ or any Religion. My loyalty is to the Constitution of the United States and anyone that flaunts that document will answer to me personally. You hear that Janet Napolitano. We will fight for our freedom to the death.

     

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  33.  
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    average_joe (profile), Dec 10th, 2010 @ 6:41am

    Re: Re: Re: a .torrent file is NOT illegal

    Please stop speaking for me when you take your assumptions and label them as 'facts'. You're trying to make an argument that there is no legitimate material available through .torrent and that's just plain wrong.

    "We" don't "all know that" the torrents found through TF are illegal... you presume so.


    I have never said that there is "no legitimate material available through .torrent." Nor would I EVER say that because I know for a fact that it is not true. Don't put words in my mouth.

    Of course we don't have all the facts, but that doesn't mean we can't make some educated guesses. In your opinion, which is of course just an opinion, are the vast majority of users of torrent-finder using it to find licit or illicit materials? Honestly, what do you think is the primary purpose of torrent-finder?

     

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  34.  
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    Hephaestus (profile), Dec 10th, 2010 @ 6:44am

    What we should be talking about which every commenter seems to have missed ...

    We should be discussing which constitutional amendments have been violated by these domain seizures and why. We should be discussing who is responsible for this. We should be discussing how to get these people thrown out on their asses. We should be following the money and pointing a huge spot light on the people in the back ground.

    Just my two cents ...

     

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  35.  
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    btrussell (profile), Dec 10th, 2010 @ 6:47am

    Re: Re: Re: Re: Re:

    Then throw MS in as well. 90%+ of infringers are using MS to obtain and use the illegal torrents.

     

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  36.  
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    btrussell (profile), Dec 10th, 2010 @ 6:51am

    Re: Re: Re: Re: a .torrent file is NOT illegal

    "Honestly, what do you think is the primary purpose of torrent-finder?"
    To locate .torrent files.

     

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  37.  
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    average_joe (profile), Dec 10th, 2010 @ 7:03am

    Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    To locate .torrent files.

    Right. And the vast majority of .torrent files lead to illicit files.

     

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  38.  
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    average_joe (profile), Dec 10th, 2010 @ 7:06am

    Re: Re: Re: Re: Re: Re:

    Then throw MS in as well. 90%+ of infringers are using MS to obtain and use the illegal torrents.

    We already went through this in another thread, but I'll explain it one last time. It doesn't matter that "90%+ of infringers are using MS." That's not analogous. The analogy would be that 90%+ of all the people using MS were using it for infringement. See the difference? The vast majority of people using MS are not using it to infringe. MS's use for infringement is only incidental.

     

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  39.  
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    Gabriel Tane (profile), Dec 10th, 2010 @ 7:06am

    Re: Re: Re: Re: a .torrent file is NOT illegal

    "Sure, you can download all the .torrent files you want, and that's not infringement. But we all know that the .torrent files torrent-finder is helping people locate are for the primary purpose of infringement"


    Let me quote you again... I'll even emphasize it for you: "But we all know that the .torrent files torrent-finder is helping people locate are for the primary purpose of infringement"

    Sorry... did I misread that? You didn't say "some" files or even "most" files... You said "the" files. And by saying "primary purpose", your sentence gives the impression that you believe all .torrent have the primary purpose of infringement but concede that those infringing files may have other purposes in addition to infringement.

    If this is not what you mean, then think about how you word things. I know you're not one of the foaming-at-the-mouth anti-pirate shills we see around here. In fact, I for one appreciate your calm and rational debating style. But you have expressed a position in the past that TF has been rightfully attacked by these actions and that there is little, if any, redemption in their case. By adding statements like this, you can't blame me or others for interpreting it as I did.

     

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    average_joe (profile), Dec 10th, 2010 @ 7:08am

    Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Would you be surprised if someone did a statistical analysis of torrent-finder's traffic and found out that the vast majority of the searches on the sight were for infringing materials? I wouldn't. That was my point. Sorry if I worded it poorly.

     

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  41.  
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    Anonymous Coward, Dec 10th, 2010 @ 7:25am

    Re: Re: Re: Re: a .torrent file is NOT illegal

    "Honestly, what do you think is the primary purpose of torrent-finder?"

    To free information from the shackles of copyright, thus advancing human rights and allowing even more people to participate in the sharing and/or creating of culture.

     

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  42.  
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    Anonymous Coward, Dec 10th, 2010 @ 7:32am

    Re: Re: Re: Re: Re: Re: Re:

    [citation needed]

     

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  43.  
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    Anonymous Coward, Dec 10th, 2010 @ 7:39am

    Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    So should criminal lawyers face the same punishment as the people they represent?

    I mean, if the vast majority of a lawyer's clients turn out to be guilty, say 98%, should the lawyer have their property seized for providing a service to a criminal?

    Right now there is no law that makes it illegal to operate a search engine, even if it assists in searching for illegal material. What you have suggested repeatedly in this forum is that torrent finder can have their property seized based on probable cause ... that another person may have committed a civil infraction. The government can have all the probable cause in the world to suspect that many of torrent finders users have broken the law; however, they can't seize torrent finders property unless they have probable cause the torrent finder broke the law. bad lawyer, bad.

     

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  44.  
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    average_joe (profile), Dec 10th, 2010 @ 7:50am

    Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    So should criminal lawyers face the same punishment as the people they represent?

    I mean, if the vast majority of a lawyer's clients turn out to be guilty, say 98%, should the lawyer have their property seized for providing a service to a criminal?


    Criminal defense lawyers can represent people they know for a fact are guilty. To suggest that doing so is wrong is just erroneous.

    Right now there is no law that makes it illegal to operate a search engine, even if it assists in searching for illegal material. What you have suggested repeatedly in this forum is that torrent finder can have their property seized based on probable cause ... that another person may have committed a civil infraction. The government can have all the probable cause in the world to suspect that many of torrent finders users have broken the law; however, they can't seize torrent finders property unless they have probable cause the torrent finder broke the law. bad lawyer, bad.

    Huh? You should brush up on contributory and inducement infringement liability. Check out 18 U.S.C. 2 while you're there to see how accomplices can be held liable for the actions of those they aid and abet. Also, the issue here is whether the domain name was being used to commit crime. If there is probable cause that it was, it can be seized.

     

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  45.  
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    Anonymous Coward, Dec 10th, 2010 @ 7:53am

    Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Perhaps I am mistaken, but in order for US authorities to secure an order from a federal court for the seizure of a domain name it must present credible information sufficient to establish probable cause.

    This a requirement established by the Fourth Amendment to the US Constitution.

    Reading many of the comments to this and other articles associated with the seizures, it seems to me that most of the commenters are of the belief than neither US law enforcement authorities nor federal courts understand the metes and bounds of the Fourth Amendment. including, perhaps, even the US Supreme Court.

    Perhaps these naysayers would be kind enough to provide citations to governing caselaw in support of their opinions.

     

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  46.  
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    btrussell (profile), Dec 10th, 2010 @ 7:56am

    Re: Re: Re: Re: Re: Re: Re:

    I'm not buying it.

    If no one buys music because they pirate it, you are saying most people are pirating. Most people also use MS.

    Are people "pirating" software to use on Linux? No, the software being "pirated" runs on MS.

    Are people "pirating" games to use on Linux? No, the games being "pirated" run on MS.

    See how much "piracy" you can eliminate by seizing and outlawing MS?

     

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  47.  
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    btrussell (profile), Dec 10th, 2010 @ 8:04am

    Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Is that torrent-finders fault?
    Are they making the torrents?
    Are they uploading the torrents?

    Are Americans still selling tasers? Those non-lethal weapons that sometimes kill?

    All armed robbery is committed with a weapon. Do you still have a right to bear arms?

    Speed kills. Are your car manufacturers making cars that exceed the speed limits?

     

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  48.  
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    Chris Rhodes (profile), Dec 10th, 2010 @ 8:05am

    Re:

    Do you find it hard to believe that there was probable cause that torrent-finder was being used for criminal infringement?

    Not really. But the same could be said of Google.

     

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  49.  
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    Chris Rhodes (profile), Dec 10th, 2010 @ 8:11am

    Re: Re: Re: Re: Re: Re: Re:

    So your argument for prosecuting TorrentFinder but not Google is that we only need to prosecute people and companies whose actions are "more often than not" illegal?

    I didn't realize the legality of something hinged around what % of your total actions your illegal acts constitute.

     

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  50.  
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    Anonymous Coward, Dec 10th, 2010 @ 8:12am

    Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Would you be surprised if someone did a statistical analysis of Google's search traffic with "filetype: torrent" and found out that the vast majority of those searches were for infringing materials?

    Your point is stupid.

     

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  51.  
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    btrussell (profile), Dec 10th, 2010 @ 8:15am

    Re: Re:

    And MS.
    Ditto for internet or any other type of communication.

     

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  52.  
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    Anonymous Coward, Dec 10th, 2010 @ 8:18am

    Re:

    Yeah, no due process. Like those guys selling crack on the street corner that get arrested. They shouldn't get arrested, the police should just send them an email telling they are bad and maybe one day there might be a trial.

    How is grade 10 going?

     

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  53.  
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    Karl (profile), Dec 10th, 2010 @ 8:24am

    Re:

    Do you find it hard to believe that there was probable cause that torrent-finder was being used for criminal infringement?

    I certainly do. It's probably true that people used their site to search for infringing content. That doesn't mean they're doing anything criminal. They may be open to a civil lawsuit for contributory infringement, but that's all.

    And, probably not even that. They do not run a tracker. They do not host .torrent files. They do not even directly link to .torrent files.

    They are doing nothing different than Google, Bing, or Yahoo! when you type "filetype:torrent" into their search engines. In fact, I wouldn't be surprised if that's how torrent-finder itself searched for torrent files. (It's cheaper than coding your own search engine, that's for sure.)

    If torrent-finder is guilty of "criminal infringement," then all search engines that allow users to search for torrent files are also guilty of "criminal infringement." They are guilty whether or not those other search engines are also used for non-infringing purposes. They might not be "dedicated" to criminal infringement, but they are guilty of it.

    Is that a position you really wish to take? Is that a position that you think is good for free speech, good for American business, or even good for rights holders themselves? I don't.

     

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  54.  
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    Anonymous Coward, Dec 10th, 2010 @ 8:32am

    Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Right. And the vast majority of .torrent files lead to illicit files.

    Even if that is true, what about this angle - .torrent files are akin to a book of instructions on how to commit an illegal act. If written, published and sold as a book this is completely legal and has been upheld in courts as such.

     

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  55.  
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    Gwiz (profile), Dec 10th, 2010 @ 8:47am

    Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Above comment is mine. Browser freaked and decided to make me an AC. :(

     

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  56.  
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    Gwiz (profile), Dec 10th, 2010 @ 8:48am

    Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Above comment is mine. Browser freaked and decided to make me an AC. :(

     

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  57.  
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    Gabriel Tane (profile), Dec 10th, 2010 @ 10:05am

    Re: Re: Re: Re: Re: Re: Re: Re:

    "If no one buys music because they pirate it, you are saying most people are pirating. Most people also use MS."

    "See how much "piracy" you can eliminate by seizing and outlawing MS?"

    That actually falls under more than one logical fallacy. Aces.

    So far, we have: Fallacy of Accident or Sweeping Generalization:
    http://en.wikipedia.org/wiki/Accident_(fallacy)

    Converse Fallacy of Accident or Hasty Generalization:
    http://en.wikipedia.org/wiki/Converse_accident

    Irrelevant Conclusion:
    http://en.wikipedia.org/wiki/Ignoratio_elenchi

    Affirming the Consequent:
    http://en.wikipedia.org/wiki/Affirming_the_consequent

    Cum Hoc Ergo Propter Hoc:
    http://en.wikipedia.org/wiki/Cum_hoc_ergo_propter_hoc

    Did I miss any?

    Your argument is the same as the (satirical) argument by Pastafarians that since there are less pirates than in the 1700's, and there is an increase in global temperatures since the 1700's, then therefore Global Warming is caused by a lack of pirates.

    Now, go log your linux machine off and stop M$ bashing in inappropriate arguments.

     

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  58.  
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    Gabriel Tane (profile), Dec 10th, 2010 @ 10:28am

    Re: Re:

    "Yeah, no due process. Like those guys selling crack on the street corner that get arrested. They shouldn't get arrested, the police should just send them an email telling they are bad and maybe one day there might be a trial."

    There is a world of difference between selling crack on the corner and copyright infringement. We've covered, ad nausium, what due process for copyright infringement should be (as described in the current laws that were ignored in this seizure). Even the horribly-drawn DMCA would allow the takedown of the infringing material from TF if there actually was any, but the government decided to seize the domain name anyway, without an adversarial trial. Which, as we've argued, is wrong.

    "How is grade 10 going?"

    Dunno... how about someday you tell us when you graduate that far.

     

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  59.  
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    Gabriel Tane (profile), Dec 10th, 2010 @ 10:31am

    Re: Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    And it made you double post... must be all that illegal trafficking you do on your evil evil MS machine. ;)

     

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  60.  
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    btrussell (profile), Dec 10th, 2010 @ 10:41am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    That isn't MS bashing, that is making a point.

    I didn't call them M$, you did.

    Fight fallacies with fallacies.

    Your severe criticism is deeply appreciated.
    F*ck you very much.
    P.S. No need to log-off or restart Linux(Unless I change graphics drivers or kernel). But, should I decide to do so, I will do so when I wish, not when ordered to by you.
    When you update your MS next week, let us know how the eight reboots work out for you.

     

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  61.  
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    Mike Masnick (profile), Dec 10th, 2010 @ 10:44am

    Re: Re: Re:

    I can't help but point out that you didn't at all answer my question.


    I didn't answer it because I have no idea. But seeing as Torrent Finder seems to be a search engine, then if you accuse it of being used for criminal copyright infringement, then, again, the same is true of Google. So, not quite sure what your point is, other than to undermine your basic argument.

     

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  62.  
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    average_joe (profile), Dec 10th, 2010 @ 10:48am

    Re: Re:

    I certainly do. It's probably true that people used their site to search for infringing content. That doesn't mean they're doing anything criminal. They may be open to a civil lawsuit for contributory infringement, but that's all.

    I'm not sure how you can think they're open to civil, but not criminal, liability. Which part of 17 U.S.C. 506 don't you think applies?

    And, probably not even that. They do not run a tracker. They do not host .torrent files. They do not even directly link to .torrent files.

    You need to analyze it under contributory infringement or inducement infringement analysis. The fact that do not run the tracker or host the .torrent files does not mean they are guaranteed to be in the clear. Far from it.

    If torrent-finder is guilty of "criminal infringement," then all search engines that allow users to search for torrent files are also guilty of "criminal infringement." They are guilty whether or not those other search engines are also used for non-infringing purposes. They might not be "dedicated" to criminal infringement, but they are guilty of it.

    I don't really follow you, and I don't think the law backs up your opinion.

    Is that a position you really wish to take? Is that a position that you think is good for free speech, good for American business, or even good for rights holders themselves? I don't.

    That's not the position I'm taking, so I don't see your point.

     

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  63.  
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    Gabriel Tane (profile), Dec 10th, 2010 @ 10:51am

    "That isn't MS bashing, that is making a point."

    So... making a point that was demonstrated to mean nothing to the coversation by every fallacy I referenced (perhaps by some I missed) leads me to believe that it was brought in as an attack against MS. And that's not bashing… how?

    "P.S. No need to log-off or restart Linux(Unless I change graphics drivers or kernel). But, should I decide to do so, I will do so when I wish, not when ordered to by you.
    When you update your MS next week, let us know how the eight reboots work out for you.
    "

    Lemmie guess... that's not MS bashing either? Especially since I said "log off" in the vein of "go away". Interesting how the “non-MS bashing”[sic] Linux fanboy turns 'go away' into an opportunity to point out linux's superiority to MS. Hmm... most telling.

    Now, since subtlety is lost on you… if you’re not going to contribute to the conversation, don’t participate. Don’t use it as an opportunity to add in a “let’s do away w/ MS” line where it’s not needed and doesn’t belong.

    Now, when you find a proper place for those comments, let me know… I’d be happy to join you. While I don’t have to restart MS every time I update (much less multiple times), I do hate them too.

     

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  64.  
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    average_joe (profile), Dec 10th, 2010 @ 10:52am

    Re: Re: Re: Re:

    I didn't answer it because I have no idea. But seeing as Torrent Finder seems to be a search engine, then if you accuse it of being used for criminal copyright infringement, then, again, the same is true of Google. So, not quite sure what your point is, other than to undermine your basic argument.

    You guys really seem to be hanging your hat on the notion that if torrent-finder is infringing, then Google must be as well. I think that's a bogus conclusion. When I have some more time I'll dig up some caselaw that's on point.

     

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  65.  
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    btrussell (profile), Dec 10th, 2010 @ 10:59am

    "if you’re not going to contribute to the conversation, don’t participate."

    Such as your last couple of posts?

    P.S. You may note the fact that I also used tasers and cars in another post in this thread.
    Take your condescending attitude and shove it up your ass.

     

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  66.  
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    Gabriel Tane (profile), Dec 10th, 2010 @ 11:12am

    Re:

    "Such as your last couple of posts?"

    My last couple of posts were trying to clean this all up.
    "P.S. You may note the fact that I also used tasers and cars in another post in this thread."

    And you'll notice that I didn't say anything about them... they actually make a good point that I agree with and don't have any problems with the logic. I have always agreed with 'don't blame the tool for the user's action'.

    But tell me this: was your stance of "MS is guilty too" sarcastic? If so, I apologize for missing the tone. If not, then you're a hypocrite for attacking one tool while arguing for the innocence of others. Judging by the fact that you didn't say "no, that was meant to be ironic" when someone challenged your first anit-MS post, I'd say it doesn't look too sarcastic from here.

     

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  67.  
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    Karl (profile), Dec 10th, 2010 @ 12:06pm

    Re: Re: Re:

    Which part of 17 U.S.C. 506 don't you think applies?

    None of it, since they're neither "reproducing" nor "distributing" .torrent files, much less actual copyrighted material.

    You need to analyze it under contributory infringement or inducement infringement analysis.

    Can you name one single case where any entity was charged with criminal contributory infringement?

    I don't really follow you, and I don't think the law backs up your opinion.

    It's simple. Searching for .torrent files is either unlawful, or it is not. If it is, then sites like Google, Bing, etc. are also guilty of unlawful behavior. If not, then torrent-finder is not guilty either.

    Let's ignore the domain name seizure for just a moment. Here's the question: Does the government have the right to issue an injunction against Google, to stop them from letting users search specifically for torrent files? That is, can the government prevent Google from allowing "filetype:torrent" as a search parameter?

    The answer, quite clearly I think, is "no." So they shouldn't be able to prevent torrent-finder from doing exactly the same thing.

    I think that if this actually makes it to court (doubtful - I'm betting the goverment will drop the charges), a judge will agree with me. Probably won't even make it past summary judgement.

     

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  68.  
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    Karl (profile), Dec 10th, 2010 @ 12:21pm

    Re: Re: Re: Re:

    Here, I'll give you another example.

    For 25 years, Hot Wacks Magazine has produced catalogs of bootleg recordings.

    Is Hot Wacks a criminal organization?

     

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  69.  
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    average_joe (profile), Dec 10th, 2010 @ 12:32pm

    Re: Re: Re: Re:

    None of it, since they're neither "reproducing" nor "distributing" .torrent files, much less actual copyrighted material.

    Tell that to Grokster.

    Can you name one single case where any entity was charged with criminal contributory infringement?

    Of course not, since there is no such thing. Contributing to the infringement opens you up to liability for criminal infringement. It's subtle, but there's a difference. And even if no one in the history of the world has ever been convicted of criminal infringement, that is irrelevant to whether or not someone could be convicted of such.

    I think that if this actually makes it to court (doubtful - I'm betting the goverment will drop the charges), a judge will agree with me. Probably won't even make it past summary judgement.

    I really hope they do go to court to fight the seizure. I am pretty sure they aren't getting that domain name back. We shall see.

     

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  70.  
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    average_joe (profile), Dec 10th, 2010 @ 12:38pm

    Re: Re: Re: Re:

    Just to explain a bit further... 18 U.S.C. 2 states: "Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."

    In other words, what the civil law would call contributory infringement liability, the criminal law would call accomplice liability. Anyone who "aids, abets, counsels, commands, induces or procures" the commission of criminal infringement is guilty as if they had committed the infringement themselves.

     

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  71.  
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    Anonymous Coward, Dec 10th, 2010 @ 12:41pm

    Re: Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Why don't you read 17 U.S.C 506 paragraph 2 and then brush up on 17 U.S.C 512.

    18 U.S.C. deals with criminal offenses only and since copyright, by default, is a civil offense 18 only applies if one is found guilty of willful infringement, which according to 17 U.S.C. 506 cannot be determined based on evidence of distribution or reproduction alone.

    Also, torrent finder isn't distributing or reproducing the copyrighted content. You're gonna make a great lawyer someday ... but first you should learn the law.

     

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  72.  
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    average_joe (profile), Dec 10th, 2010 @ 12:51pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    Why don't you read 17 U.S.C 506 paragraph 2 and then brush up on 17 U.S.C 512.

    18 U.S.C. deals with criminal offenses only and since copyright, by default, is a civil offense 18 only applies if one is found guilty of willful infringement, which according to 17 U.S.C. 506 cannot be determined based on evidence of distribution or reproduction alone.

    Also, torrent finder isn't distributing or reproducing the copyrighted content. You're gonna make a great lawyer someday ... but first you should learn the law.


    I'm aware that criminal copyright infringement must be willful. Not sure when I indicated otherwise. And I'm aware that torrent-finder isn't distributing or reproducing the content. The argument is that they are accomplices.

    Anything else?

     

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  73.  
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    average_joe (profile), Dec 10th, 2010 @ 12:55pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    One thing that I'm not sure about is whether or not the domain name was seized because the feds thought the operators of the domain name were criminals, or did they simply think that the domain name was being used by criminals, i.e., the users of the site and not the operators were the criminals. We don't really know which one it is, as far as I know.

     

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  74.  
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    RandomGuy (profile), Dec 10th, 2010 @ 1:07pm

    Re: Re: Google?

    So where does something like Find Some Music, a site which automates google searches to make it easier to find media or torrents, fit in?

    Search engines are a dangerously ambiguous thing to be shutting down.

     

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  75.  
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    Modplan (profile), Dec 10th, 2010 @ 9:28pm

    Re: Re: Re: Re: Re:

    Tell that to Grokster.


    It was claimed Grokster could control their service and were told to try and stop/block all infringing files. Torrent-finder has no control over the search results of others, it merely queries other search engines and presents their results in what amounts to an embedded browser.

     

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  76.  
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    average_joe (profile), Dec 10th, 2010 @ 9:49pm

    Re: Re: Re: Re: Re: Re:

    It was claimed Grokster could control their service and were told to try and stop/block all infringing files. Torrent-finder has no control over the search results of others, it merely queries other search engines and presents their results in what amounts to an embedded browser.

    I just don't buy that torrent-finder is so innocent. They must have more than just a generalized knowledge that their site is primarily used for infringement. In fact, I'd be genuinely surprised if that wasn't the entire purpose of the site. Reading the message boards on there only verifies my suspicion. Do you think they set up shop to help people infringe, or do you think they set up shop to help people only find the legit torrents? Honestly, what do you think? If you think their intent is legit, then how do you explain the fact that they make absolutely no effort to block infringement? The issue isn't whether you can think of some possibility to justify their actions, no matter how remote the possibility. The issue is simply what are they actually doing, and why they're doing it. Their liability hinges on whether they are in good faith or bad. If you look at that site and see a good faith bunch of Boy Scouts, then I've got a bridge to sell you.

     

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    Karl (profile), Dec 11th, 2010 @ 12:03am

    Re: Re: Re: Re: Re:

    Tell that to Grokster.

    If I remember correctly, they actually reproduced and distributed torrent files (though not the actual content). Torrent-finder does neither - they literally do nothing that Google does not also do.

    Contributing to the infringement opens you up to liability for criminal infringement.

    Contributing to criminal infringement might. That would mean that the state must prove: 1.) that they willfully contributed to infringement (not just offered a service that was potentially infringing); 2.) that the infringement they contributed to was criminal, not civil; and 3.) they had direct knowledge that the infringement was criminal. Unless all three conditions are satisfied, they are not criminally liable (though they may be liable in a civil trial, which has a much lower standard of proof).

    Even if the prosecutors managed to convince a judge that all three were true (which I somehow doubt), that would not mean that they could just seize the domain name without first having an adversarial hearing, with both parties making their arguments before a judge.

    I really hope they do go to court to fight the seizure. I am pretty sure they aren't getting that domain name back.

    They are going to court. Unless the prosecutor ends up charging them (which I doubt), they probably will get the domain name back. We shall see.

     

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    Karl (profile), Dec 11th, 2010 @ 12:15am

    Re: Re: Re: Re: Re: Re: Re:

    One point I forgot to make:

    Do you think they set up shop to help people infringe, or do you think they set up shop to help people only find the legit torrents?

    If what they are doing is not in fact criminal, then it matters not one iota what their intent is. If the speed limit is actually 65MPH, then you're not going to get a ticket for driving 65MPH, even if you think you're in a school zone.

     

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  79.  
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    Karl (profile), Dec 11th, 2010 @ 12:38am

    Re: Re: Re: Re: Re: Re:

    If I remember correctly, they actually reproduced and distributed torrent files (though not the actual content).

    I looked it up, and I'm wrong. It didn't use torrent files at all - it was an old-school, non-distributed P2P program (like Napster).

    This makes them twice removed from torrent-finder. Users could use Grokster's service to distribute the infringing files themselves; users can't use torrent-finder's service to distribute anything.

     

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  80.  
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    Karl (profile), Dec 11th, 2010 @ 1:21am

    Re: Re: Re: Re: Re: Re: Re:

    users can't use torrent-finder's service to distribute anything.

    Sorry, I know I'm being a pest here, but I can't let this go.

    Let's say you're a budding pirate. You get your hands on a pre-release copy of the last Harry Potter film. "Hey, this is cool," you think, "and if I put this on the Web, I'll be a hero to pirates and dorky chicks."

    So you put it in DivX format, make a .torrent file out of it, go to torrent-finder, and...

    ...you can't do anything. So you put the torrent up on The Pirate Bay, or Monova, or whatever. A bit later, those sites index their torrents. A bit after that, those sites get indexed by Google. Assuming torrent-finder uses Google as a back-end (which I suspect is the case), only then will it end up on the site.

    Now, say you're searching for this same Harry Potter film. You run across torrent-finder, and assume you can get a torrent file from them. You type in "Harry Potter pre-release," and...

    ...you're taken to a site that's not remotely affiliated with torrent-finder. But you have to sit through torrent-finder's annoying ads to get there, in addition to the other annoying ads at the original site.

    "Boy, this is a gyp," our pirate thinks, "I could just do a Google search." And he does.

    Now, torrent-finder goes to court and gets shut down. Our pirates don't cry, because torrent-finder never really offered them anything decent anyway. They don't care. You know who does?

    Google. Bing. Yahoo. They care, because they know they're not doing anything different than torrent-finder. So, in all likelihood, they'll distance themselves from this torrent-finder pariah, put out a couple press releases, then it's back to business as usual. Our pirates don't even notice.

    Or maybe the search engines cave. They change their service so that users can't search for pages that link to torrent files anymore. If they cave like this enough, they'll be left with a search engine that can't actually search for anything. "Filetype:PDF?" Nope, those PDF's might be infringing eBooks. "Image Search" that links directly to images? Nope, those images are copyrighted - don't want DHS to shut them down for that. Indexing a Wikileaks mirror? Oh, Hell no!

    Users will leave these companies in droves. Income and jobs will be lost. And will that stop infringement? Nope. Sooner or later (probably sooner), some foreign company - who doesn't have to bow down to the will of U.S. prosecuters - will set up a new search engine, which (coincidentally) is just like what Google is right now. Many others will set up clones of torrent-finder. The whole thing will be just like before - except the people employed by those companies will be stimulating the economy of a foreign country, one that actually values freedom.

    So, our pirates get a new place to pirate stuff. Our tech industry goes down the toilet. Free speech is killed. And none of this results in rights holders making a single dime more than they are now.

    I've no idea how anyone can think this is a good idea.

     

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    Karl (profile), Dec 11th, 2010 @ 1:41am

    Re: Re:

    Like those guys selling crack on the street corner that get arrested. They shouldn't get arrested, the police should just send them an email telling they are bad and maybe one day there might be a trial.

    It's been said already, but selling crack (unlike hosting a website, even one "dedicated to infringement") is not an expressive act. Unlike selling drugs, expressive acts are explicitly protected by the Constitution, so there is a much higher standard for state seizure.

    How is grade 10 going?

    Maybe you should tell us, a couple years from now, when you're in it.

     

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    Karl (profile), Dec 11th, 2010 @ 1:50am

    Re: Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    it seems to me that most of the commenters are of the belief than neither US law enforcement authorities nor federal courts understand the metes and bounds of the Fourth Amendment.

    Part of the problem is that these seizure laws were written during the height of the paranoid war on drugs. Law enforcement wasn't just allowed to seize the drugs themselves, but also the "ill-gotten gains" of drug dealing, including houses, cars, etc. Even if there was no conviction, the government is not required to return the seized property.

    Yeah, it sucks, and it's probably unconstitutional. But nobody wanted to go to bat for drug dealers, so the laws stand. Now they're being used against copyright infringers.

    It would be a good lesson for lawmakers, except I doubt they'd listen.

     

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    Modplan (profile), Dec 11th, 2010 @ 2:20am

    Re: Re: Re: Re: Re: Re: Re:

    The issue is simply what are they actually doing, and why they're doing it.


    The fact is, your entire argument has now fallen back on discussing intent, at which point we can dispense with any facts of how any of these sites work or what they do. We can merely claim or show their intent, and regardless of the merits of any discussion about the technology, how it works or their striking similarities to about a dozen and one other services, we should throw them in jail based on intent. There mere fact they intended to do something, regardless of whether this was actually achieved or whether the means were any different than any other service, is enough to convict them of criminal copyright infringement, fined a significant sum and/or thrown in jail.

    They must have more than just a generalized knowledge that their site is primarily used for infringement.


    And yet this was not quite as low a standard as the one set for Isohunt, nor Veoh.

    In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities. This “knowledge” standard is defined as “actual knowledge” or “willful ignorance.” According to the widely-cited House and Senate Report on the law, “if the service provider becomes aware of a ‘red flag’ from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.” H.R. Rep. 105-551(II), at 53; see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). The Congressional Report notes that the service provider is only liable if it “turned a blind eye to ‘red flags’ of obvious infringement.” 551(II), at 57. Other courts have applied this test as requiring “willful ignorance of readily apparent infringement.” UMG Recordings Inc. v. Veoh Networks Inc., __ F. Supp. 2d __, 2009 WL 3422839, at *7 (C.D. Cal. 2009) (citing Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)). H.R. Rep. 105-

    Even under this stringent “willful ignorance” test, it is apparent that Defendants have “turned a blind eye to ‘red flags’ of obvious infringement.” See H.R. Rep. 105-551(II), at 57.


    Note that half the reason Isohunt lost was because of Fung's own actions specifically referencing torrents to infringing content, manually adapting (what I assume they're referring to) the autocomplete when a user starts typing search terms, and specifically indexing and providing lists of current top shows and films with the corresponding torrents, and that they didn't provide evidence nor even argue certain points. Meanwhile, Veoh won its case.

    Here we're discussing a torrent site that uses entirely different means of providing users with search results with which they have no direct control over.

     

    reply to this | link to this | view in thread ]

  84.  
    icon
    Modplan (profile), Dec 11th, 2010 @ 2:22am

    Re: Re: Re: Re: Re: Re: Re:

    The issue is simply what are they actually doing, and why they're doing it.


    The fact is, your entire argument has now fallen back on discussing intent, at which point we can dispense with any facts of how any of these sites work or what they do. We can merely claim or show their intent, and regardless of the merits of any discussion about the technology, how it works or their striking similarities to about a dozen and one other services, we should throw them in jail based on intent. There mere fact they intended to do something, regardless of whether this was actually achieved or whether the means were any different than any other service, is enough to convict them of criminal copyright infringement, fined a significant sum and/or thrown in jail.

    They must have more than just a generalized knowledge that their site is primarily used for infringement.


    And this is an even lower standard than the one set for Isohunt and Veoh.

    In order to obtain safe harbor, a defendant cannot have knowledge of ongoing infringing activities. This “knowledge” standard is defined as “actual knowledge” or “willful ignorance.” According to the widely-cited House and Senate Report on the law, “if the service provider becomes aware of a ‘red flag’ from which infringing activity is apparent, it will lose the limitation of liability if it takes no action.” H.R. Rep. 105-551(II), at 53; see also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007). The Congressional Report notes that the service provider is only liable if it “turned a blind eye to ‘red flags’ of obvious infringement.” 551(II), at 57. Other courts have applied this test as requiring “willful ignorance of readily apparent infringement.” UMG Recordings Inc. v. Veoh Networks Inc., __ F. Supp. 2d __, 2009 WL 3422839, at *7 (C.D. Cal. 2009) (citing Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1108 (W.D. Wash. 2004)). H.R. Rep. 105-

    Even under this stringent “willful ignorance” test, it is apparent that Defendants have “turned a blind eye to ‘red flags’ of obvious infringement.” See H.R. Rep. 105-551(II), at 57.


    Note that half the reason Isohunt lost was because of Fung's own actions specifically referencing torrents to infringing content, manually adapting (what I assume they're referring to) the autocomplete when a user starts typing search terms, and specifically indexing and providing lists of current top shows and films with the corresponding torrents, and that they didn't provide evidence nor even argue certain points. Meanwhile, Veoh won its case.

    Here we're discussing a torrent site that uses entirely different means of providing users with search results with which they have no direct control over.

     

    reply to this | link to this | view in thread ]

  85.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 7:04am

    Re: Re: Re: Re: Re: Re: Re: Re:

    If what they are doing is not in fact criminal, then it matters not one iota what their intent is. If the speed limit is actually 65MPH, then you're not going to get a ticket for driving 65MPH, even if you think you're in a school zone.

    Intent does matter. That's what mens rea is in criminal law. Speeding is a strict liability offense, which is different.

     

    reply to this | link to this | view in thread ]

  86.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 7:08am

    Re: Re: Re: Re: Re: Re:

    We certainly shall see. It'll be easier to discuss all this once we have some more specifics about what the feds are claiming.

     

    reply to this | link to this | view in thread ]

  87.  
    identicon
    Anonymous Coward, Dec 11th, 2010 @ 8:26am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    How can you be an accomplice to a crime that hasn't happened?

    Do you get this at all?

     

    reply to this | link to this | view in thread ]

  88.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 8:36am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

    How can you be an accomplice to a crime that hasn't happened?

    Do you get this at all?


    I'm happy to chat with you, but there's absolutely no reason to be so rude. Obviously there is an underlying crime in the prosecutor's mind (and in the mind of the judge who agreed and signed the warrant), hence the seizure of property (the domain name) used in the furtherance of that crime. The necessary implication of a seizure pursuant to 18 U.S.C. 2323 (which is what we have here) is that there is an underlying crime. What we're trying to figure out is what crime the prosecutor has in mind. Do you have any theories? Do you think you can join the conversation in a constructive way?

     

    reply to this | link to this | view in thread ]

  89.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 9:17am

    I'll go ahead and ask the same question to Karl, Modplan, and anyone else reading this. What do you suppose is the prosecutor's theory of criminal copyright infringement in the seizure of torrent-finder.com?

    By way of background... These seizures were done pursuant to 18 U.S.C. 2323. You can see that for yourself by reading the notice posted on http://torrent-finder.com/ The statute allows for the seizure of "[a]ny property used, or intended to be used, in any manner or part to commit or facilitate the commission of" criminal copyright infringement under 17 U.S.C. 506.

    In other words, by seizing the domain name in this way, the prosecutor had to produce probable cause that the domain name was being used to commit or facilitate criminal copyright infringement. Since we have no way of knowing for sure, I'm curious what people think the prosecutor's theory is.

    Personally, I think perhaps the theory is that torrent-finder.com is facilitating others to commit criminal copyright infringement, and as such the domain name is subject to seizure. I also suspect that the operators of the site might be chargeable as accomplices in the infringement.

    That's my theory. What's yours?

     

    reply to this | link to this | view in thread ]

  90.  
    icon
    Karl (profile), Dec 11th, 2010 @ 10:47am

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    That's what mens rea is in criminal law.

    Mens rea does not create actus reus.

    I'll give you a more relevant example. I'm sure most iPhone users haven't read the LOC ruling that jailbreaking is no longer a DMCA violation. So, if they jailbreak their iPhones, they believe they're breaking the law. Can they be arrested? No, they can't - because whether they know it or not, what they are doing is not illegal.

     

    reply to this | link to this | view in thread ]

  91.  
    icon
    average_joe (profile), Dec 11th, 2010 @ 11:23am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    Mens rea does not create actus reus.

    I'll give you a more relevant example. I'm sure most iPhone users haven't read the LOC ruling that jailbreaking is no longer a DMCA violation. So, if they jailbreak their iPhones, they believe they're breaking the law. Can they be arrested? No, they can't - because whether they know it or not, what they are doing is not illegal.


    The mens rea for criminal copyright infringement is "willfully," no? I think you're make it way too complicated by bringing up strict liability (speeding) and the idea of whether impossibility is a defense (iPhone jailbreaking).

     

    reply to this | link to this | view in thread ]

  92.  
    icon
    Jay (profile), Dec 11th, 2010 @ 10:17pm

    Re: Re: Re: Re: Re:

    Google can be used for torrents. It just has a reputation for linking to a myriad of other things. How Google can't get in trouble for linking but Torrent Finder can, when Bittorrent is a legal technology and torrents can be used for non infringing purposes such as looking at Pioneer One, is anyone's guess.

    Best case law right now is Viacom v. Youtube.

     

    reply to this | link to this | view in thread ]

  93.  
    identicon
    Anonymous Coward, Dec 20th, 2010 @ 7:09am

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: a .torrent file is NOT illegal

     

    reply to this | link to this | view in thread ]

  94.  
    identicon
    phyxiusanimus, Dec 22nd, 2010 @ 11:11am

    Re: Re: Google?

    So, your stance is that Google is acceptable and Torrentfinder is not. Your defense for that stance is, "Google lists more than illegal content. They don't filter."

    So, based on your horrid logic, Walmart should be able to sell marijuana and methanfetamines, simply because that's not ALL they do.

    Great defense there.

     

    reply to this | link to this | view in thread ]

  95.  
    identicon
    scott, Jan 18th, 2011 @ 1:23pm

    Google

    So, how is it i can go on Google and find out how to make Crack cocain.. Amongst other things, but its more illegal to download torrents?? Just shows how messed up this planet of humans is!!! And whats happening now, is that Governments are trying to put pressure on service providers to control what there interent users are using it for, by making them warn and then suspend your use of the internet if you are downloading illegal files. In that case then, service providers are going to go out of business pretty soon, because there must be at least 80% of users on the Net, clicking and downloading illegal files. Where has comon sense gone?

     

    reply to this | link to this | view in thread ]


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