ICE Admits That It Just Wants To 'Put People In Jail' With Operation In Our Sites

from the nice-of-them dept

Rob Fischer has a fantastic article at The American Prospect, looking at ICE's Operation In Our Sites program, with a specific focus on the seizure and subsequent prosecution of NinjaVideo. It's worth reading in its entirety, as a few things become clear. Here are just a few interesting tidbits, though. First up, the site's admins noted that they had done their best to abide by the DMCA, and they figured that if anything, they might have to fight a civil lawsuit, not a criminal one:
Under the Digital Millennium Copyright Act of 1998 (DMCA), copyright owners are responsible for sending takedown notices to sites hosting infringing content. Anyone on YouTube who has ever read the statement “This video has been removed due to terms of use violation” has seen the result of a DMCA notice. “We believed that if we didn’t host the content but linked to it elsewhere on the Web, our only legal consideration was complying with takedown notices,” Beshara says. “And we always complied.”

But it wasn’t so simple. The DMCA takedown process allows intermediaries like YouTube to avoid liability because it’s their users uploading the infringing content. Ninja Video was both the intermediary and the uploader. Independent storehouses called “cyberlockers” hosted the content Ninja Video streamed, but Ninja’s uploaders put it there.
I'm not sure that this is really an accurate explanation of the DMCA issue, seeing as the users uploaded the content... that's the same thing with YouTube and Veoh, both of which have been declared legal under the DMCA. As long as they followed the safe harbor provisions, the fact that users upload shouldn't have an impact. There very likely may have been issues of secondary liability if the site encouraged people to infringe -- but that's a separate issue, and one that again should have been an issue for civil copyright law, rather than criminal.

The folks at ICE come across as typical meatheads with no clue what they're dealing with here. The real humdinger of a quote comes from ICE Special Agent William Ross, who earlier in the piece notes that he was influenced by Hollywood repeatedly asking him to do their job. But when confronted with the point (made by Corynne McSherry from EFF) that "Arresting people and putting them in jail for having some links online doesn’t really strike me as a good way for us to invest our time and energy." Ross hits back:
“I am a law-enforcement officer,” says Special Agent Ross. “I want to put people in jail.”
That, alone, is a pretty ridiculous and scary quote when you think about it. He's not talking about fairness or justice or upholding the law. He just wants to "put people in jail." People like that shouldn't have jobs in power.

In the end, it seems clear that the folks at Ninja Video received horrific legal advice and made some equally poorly thought out legal decisions themselves. I still don't see where the site's operators could have possibly been liable for criminal copyright infringement, but after throwing away the $10,000 they raised on lawyers, who (from the description in the article) did not appear to do very much (and it's not clear they ever understood fully what was happening), the admins quickly caved to government pressure on plea bargains.

In the wake of the Dajaz1 debacle by the Justice Department, it seems even more ridiculous that the NinjaVideo folks agreed to the plea deals. If they'd just received some decent legal advice early on, they wouldn't now be facing years in jail. Pretty unfortunate.

In the meantime, what you get is a ridiculous portrait of a bunch of "we just want to put people in jail" semi-clueless ICE agents (they repeatedly use Alexa as their judge of what's popular -- can no one buy them a subscription to a decent online monitoring service?) who don't even recognize the First Amendment implications of seizing sites with tons of non-infringing content on it, and who seem to be totally in awe of big entertainment companies and the myths they tell. The whole thing would be amusing if it didn't involve serious Constitutional questions and if people weren't ending up in jail.

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  1. icon
    Mike Masnick (profile), 21 Dec 2011 @ 5:23pm

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

    Your posts tell a different story, Mike. Do you really think no one can tell?

    No. My posts do not tell a different story. For those who can comprehend even moderately complex subjects.

    Most people here seem to understand just fine without jumping to multiple false conclusions. Perhaps -- just perhaps -- the issue is with you, since nearly everyone else here can understand what I am saying.

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