Just about two years ago, we wrote about the DOJ seizing three websites
that were allegedly set up to let people download cracked versions of fee-based Android apps. As in the past, we were somewhat troubled by the government's willingness to seize websites without any form of adversarial hearing. As far as we can tell, such actions clearly violate the First Amendment as per the ruling in Fort Wayne Books v. Indiana
. Either way, two years later, the government has finally
gotten around to indicting some of the folks
behind the three sites: Appbucket, Applanet and SnappzMarket. It's entirely possible that those indicted did break the law, though the fact that in all three cases the feds first got some of the other participants to take a plea deal in which they supply evidence against the others and
that most of them were only charged with one or two counts on things like "conspiracy to commit criminal copyright infringement" suggests a fairly weak case. This is a DOJ that we're used to seeing pile on dozens of charges.
But, what caught my attention is the ridiculous rhetoric from the DOJ in announcing these indictments
. The most bizarre and stupid line has to go to US Attorney Sally Quillian Yates of the Northern District of Georgia:
“Copyright infringement discourages smart people from doing innovative things,” said U.S. Attorney Yates. “This problem is especially acute when it comes to rapidly developing technologies, like apps for smart phones, and these defendants are now being held accountable for the intellectual property they stole.”
Note that this isn't just a random quote in an interview. This is the quote that Yates put in the press announcement
, meaning that multiple people vetted this and thought it was appropriate. First off, I'm curious: which "smart people" have been "discouraged" from "doing innovative things" because of copyright infringement? Does Yates honestly believe that some brilliant app developer out there had an idea for an app and said... "nah, if I make that, people will just infringe, so screw it." There may
be a reasonable argument that some developers may not make as much money as they otherwise might have -- and that leads to fewer resources to focus on development. But the idea that it scares people off from actually doing work is... simply not true.
And even if the statement were true, is that really the yardstick we want to measure things by? Because I can also show plenty of cases where copyright infringement has actually encouraged
smart people to do innovative things. The creation of important peer to peer technology was built on the back of the desire of some to infringe. The amount of creative and innovative work based on infringement is pretty damn high. If we're going to get into a pissing contest over whether infringement inspires or discourages innovation, US Attorney Yates is going to lose badly. Very badly.
Also, what "intellectual property" did they "steal?" This is a US attorney, and as far as I can tell, none of the indictments involve anything relating to any statutes on theft. Furthermore, nothing seems to involve them taking the copyrights away from original owners. At most, it appears that these individuals set up sites for the sharing of infringing copies of apps. If you're talking about "theft" of "intellectual property" you kinda have to be talking about someone taking
someone else's copyright (or patent or trademark), otherwise you're saying things that are simply inaccurate.
Next up, we have "Special Agent in Charge J. Britt Johnson of the FBI’s Atlanta Field Office."
“Today’s federal indictments are the direct result of an extensive and thorough federal investigation into three groups of individuals aggressively engaged in and profiting from the theft of intellectual property,” said Special Agent in Charge Johnson. “While copyright infringement is the direct theft of the hard work of others in the form of research and development expended, it can also negatively impact incentives for further or future development of those ideas or applications. The FBI will continue to provide significant investigative resources toward such groups engaged in such wholesale pirating or copyright violations as seen here.”
Copyright infringement is "the direct theft of the hard work of others." How do you "steal" the hard work of others? And where in the indictment is anything having to do with actual theft, rather than copyright infringement?
It's troubling that the DOJ seems to have taken the copyright industry's bogus language of "theft" and "stealing" and falsely applied it to issues related to infringement. Even if these individuals broke the law, you'd hope that the DOJ would at least accurately portray the indictment and charges against the individuals, rather than making plainly ridiculous claims. The problem, though, is that this is what happens after a generation of entertainment industry execs spew misleading garbage about how infringement is "theft." A bunch of DOJ folks who don't understand intellectual property just act as if this is the same thing, even though it isn't even close.