by Mike Masnick
Mon, Dec 20th 2010 10:36am
by Mike Masnick
Fri, Dec 17th 2010 9:52am
Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law
from the holy-crap dept
It looks like the four blog/forum sites (RapGodFathers, OnSmash, Dajaz1 and RMX4U) and Torrent-Finder were all lumped together into a single warrant and affidavit. The affidavit was written by a Special Agent with ICE, named Andrew Reynolds, who indicates in the affidavit that he only recently graduated from college (he notes that he's only been on the job for one year, but before that he was a "student trainee with the group"). Much of the affidavit relies heavily on the MPAA. This fits with what ICE assistant deputy director Erik Barnett said soon after the seizures, admitting that they basically just took what sites Hollywood said were a problem and seized them.
In this case, Mr. Reynolds repeats the debunked stats the MPAA has given out concerning "losses" to Hollywood, including the claim of "domino effects" of piracy -- a claim that has been debunked so many times it's getting stale. The "domino" effects are really all about double, triple and quadruple counting the same dollars -- and, perhaps more importantly, they only look at the domino effect (they usually call it a "ripple effect") in one direction, ignoring the fact that money not spent on movies still gets spent elsewhere (potentially boosting those other industries). That doesn't mean that it's okay to not pay for movies -- but it means that claiming some massive economic "harm" here is misleading at best. Even the GAO -- from the same government Agent Reynolds works for -- has debunked the MPAA's stats, in part because the MPAA refused to explain how it came up with those numbers.
Most of the reasoning behind seizing the blogs is left out of the released document, but the entire section on Torrent-Finder is there, and the level of confusion by Mr. Reynolds is worrisome. First of all, he calls it a "linking" and a "bit torrent website." Earlier in the affidavit, these terms are defined loosely -- without any indication of the unsettled nature of the legal question concerning whether or not simply linking to potentially infringing content is, itself, infringing. Instead, it's simply assumed that linking is not just infringement, but potentially criminal infringement. That's scary. And wrong.
Meanwhile, a "bit torrent website" is defined is a "website through which illegal copies of movies and television shows are shared and transferred." The problem here, of course, is that Torrent-Finder is not, in fact, a "bit torrent website." It hosts no tracker. It hosts no infringing content. It's a search engine. That distinction is entirely ignored. In fact, Agent Reynolds appears to blame Torrent-Finder for anything it finds as a search engine. Anyone at any search engine (or who understands how the internet works) should be horrified by this. It's like saying that Google is liable for everything and anything that people can find by doing a search on Google. Think about that for a second.
From there, it gets even more ridiculous. As part of Agent Reynold's argument as to why Torrent-Finder is liable he points to a series of posts by the Torrent-Finder Admin in the site's forums. Specifically, he names the following:
I was able to view several posts by the user "Torrent Finder," including "Top 10 Most Pirated Movies on BitTorrent," "Piracy in the Music Industry," "Piracy Can Boost Book Sales Tremendously," "The First Episode of 'The Walking Dead' Leaks to BitTorrent," and "Piracy domain siezure bill gains support."Agent Reynolds helpfully provides some of these "posts" in the exhibit. And therein we discover a serious problem. The exhibit shows a page from TorrentFreak.com, the popular blog (who we link to quite often) doing its weekly research report -- and not Torrent-Finder. In fact, if you do searches on those "posts" that Agent Reynolds claims are by Torrent-Finder, you quickly discover that a few are blog posts on TorrentFreak, one is a post from ZeroPaid and the last one is a story at CNET's News.com by Declan McCullough.
In other words, the "support" that Agent Reynolds provides for why Torrent-Finder's domain should be seized is that he claims that Torrent-Finder's admin linked directly to infringing material. But that's not true. Instead, the admin was simply pointing to a bunch of different news stories. Even worse, some of those news stories highlight why the claims of the MPAA, which Agent Reynolds relies upon, are simply made up -- such as TorrentFreak's story about comic artist Steve Lieber (which was actually based on a Techdirt story about how Steve Lieber embraced the so-called "pirates" and ended up making a lot more money -- we later interviewed Steve about his experiences). The CNET article is all about the COICA law -- which is about the legality of seizures like this one. How is that evidence of probable cause?
Even going beyond the fact that Agent Reynolds can't seem to figure out that a search engine is different than a torrent tracker or a torrent hosting site, he also seems to think that linking to blog posts like the ones we write here is probable cause for criminal behavior. Holy crap! That's just downright scary.
The entirety of the evidence against Torrent Finder appears to be that because you could do a search that takes you to another site and because the site's admin linked to some blog posts that discuss -- but do not encourage -- the state of file sharing, that there is probable cause of criminal behavior and your domain can and should be seized without any adversarial trial.
Agent Reynolds' cluelessness in the matter is compounded by the fact that it appears the only folks outside of ICE that he spoke to about what he was doing were at the MPAA itself -- which is hardly an unbiased party. It would be like investigating whether or not an upstart bank was committing fraud, by only talking to a large banking competitor. Who would think that's appropriate? Apparently Agent Reynolds and his bosses at ICE.
Equally troubling is that magistrate judge Margaret Nagle signed off on the warrants (literally, with a rubber stamp) without questioning any of this, from the look of things. Nowhere is there any discussion on how the seizure of domain names has nothing to do with the actual servers. Nowhere is there any discussion about first amendment issues in seizing domain names. Nowhere is there any discussion about prior restraint. Nowhere is there any discussion about the difference between a search engine and a torrent tracker. Nowhere is there any discussion about the difference between an infringing file and a torrent. Nowhere is there any discussion about the difference between a link to a news blog post about current events and encouraging people to download infringing content.
I thought the whole thing was ridiculous before. But now that I've read the affidavit -- at least the part about Torrent Finder -- it's become clear that this is a colossal screwup on the part of Homeland Security, ICE and the US government, based on a freshly minted ICE agent who doesn't seem to understand the technology, being lead around by the nose by MPAA staff with an agenda.
by Mike Masnick
Tue, Dec 14th 2010 9:54am
from the prior-restraint? dept
While it's still not entirely clear what the owners of those blogs are going to do, the NY Times has spoken with some of them and it appears they're certainly exploring their options. I would imagine that the EFF and others have all reached out to them as well. I'm also guessing that the RIAA -- who told ICE to take down these sites -- may actually be getting nervous that it may have pushed too far here. They have to realize that they're going to lose these lawsuits if the domain owners push back. It's classic prior restraint.
What's really scary, though, is that the article notes that the domain owners still have been given no indication of why their sites were seized and may need to wait another 30 to 60 days before they're able to even see the seizure order. That seems ridiculous. You shouldn't just be able to seize a domain name and then tell the owners that they'll find out why nearly three months later. What happened to due process?
from the ah,-lawyers dept
by Mike Masnick
Tue, Nov 30th 2010 10:34am
from the questions,-questions dept
It really looks like Homeland Security/ICE may have seriously screwed up here. Whether or not seizing domains in general like this is even legal is an open legal question -- and blatantly seizing domains with tons of legit content that the industry and artists regularly used themselves seems like a test case the government doesn't want just waiting to happen. Hopefully the folks behind both blogs have already gotten in touch with various civil liberties/free speech lawyers who can help make them into perfect test cases to show that the government can't just seize web sites without due process.
by Mike Masnick
Mon, Aug 30th 2010 5:43am
from the just-dismiss-the-case dept
Separately, the article notes that the WEHCO Media newspaper chain -- apparently totally and completely oblivious to the massive negative publicity Righthaven has generated for the Las Vegas Review-Journal -- has become the second media company to sign up for Righthaven's brand of "copyright enforcement." Paul Smith, the President of WEHCO apparently said:
"It's a pretty serious matter when someone takes your copy, information you've spent a lot of money to produce."To which we wonder if he even realizes what Righthaven does. First of all, having a random blog or forum repost your content with a link back to you isn't "a pretty serious matter." It's someone giving you some attention. It's certainly not taking anything away from you. Anyway, if you want a list of newspapers not to link to, WEHCO publishes the Arkansas Democrat-Gazette (and the NW Arkansas Democrat-Gazette), the Benton County Daily Record, the California Democrat, the Chattanooga Times Free Press, the Fulton Sun, the News Tribune, the NW Arkansas Times, the Rogers Morning News, the Springdale Morning News, the Banner News, Camden News, El Dorado News-Times, the Texarkana Gazette and The Sentinel-Record. Apparently none of those papers want you alerting anyone to the news they publish.
by Mike Masnick
Fri, Aug 13th 2010 3:10pm
from the for-all-sides... dept
"Media outlets have social responsibilities and have to serve the public," said Carlos Lauria, of the New York-based Committee to Protect Journalists. "This is being produced by someone who is not doing it from a journalistic perspective. He is doing it without any ethical considerations."Ethical considerations like repeating bogus statements from officials rather than getting to the actual meat of a story? Ethical considerations like reprinting press releases without fact checking? What "journalistic perspective" does Lauria think is being ignored here, and why is there some mythical standard that this blogger needs to live up to?
by Mike Masnick
Tue, Jul 20th 2010 4:31am
global indian foundation
from the safe-harbors dept
The guy who's being sued, Ajith K Narayanan, points out that he didn't write the words in question, that the terms of service on his blog make it clear that commenters are responsible for their own language and, finally, that there wasn't any defamation anyway because the comments are true. The latter two arguments are interesting, but it's the first one that's the important one. If Singapore properly applies liability to those actually responsible, the case should just get tossed out on that first issue, and the other two issues shouldn't matter at all. If the school really wants to go after the commenters for defamation, it should be required to show that there's a strong likelihood that the material was defamatory, and then request a subpoena for the commenters' information (at which point the blogger can decide whether or not to fight it). But simply suing the blogger and claiming he's liable for the possible defamation takes third party liability way too far, and hopefully the court in Singapore recognizes this.
It should be noted that there are some other oddities involved in this lawsuit as well, many of which are summarized at this Techgoss post. It appears that the school initially filed criminal charges, but those were quoshed by a judge earlier this year. Then there's the really bizarre back and forth from April, that began with a report in an Indian newspaper that police had arrested a former GIF employee, claiming that he had started the blog and that it was a "fake" blog to discredit GIF. That report claimed that Narayanan had revealed this ex-employee to be his co-blogger in an affidavit. Yet, in a post on the site, denies pretty much all of that. This seems like a bit of a sideshow, but it does make the whole case a bit more confusing...
by Mike Masnick
Mon, Jul 19th 2010 12:59pm
from the overreact-much? dept
by Mike Masnick
Fri, Jul 16th 2010 6:08am
from the that-doesn't-seem-right dept
"this was not a typical case, in which suspension and notification would be the norm. This was a critical matter brought to our attention by law enforcement officials. We had to immediately remove the server."That seems odd. If there was problematic content from some users, why not just take down that content or suspend those users. Taking down all 73,000 blogs seems... excessive. TorrentFreak speculates that this may be a part of the recent Homeland Security efforts to shut down file sharing site, and points to some evidence that there were at least a few Blogetery blogs that shared copyrighted works. However, no one's talking, and the ISP seems spooked, saying that it's "serious":
"Simply put: We cannot give him his data nor can we provide any other details. By stating this, most would recognize that something serious is afoot."I'm still wondering what could be so serious that the specific problems couldn't be pinpointed? Taking down 73,000 blogs with no notice seems like overkill, no matter what the actual issue turns out to be.