I'm not sure how the interplay with First Amendment and Copyright will work out. I know in prior posts you've cited Fort Wayne(i think) which was the seizure of a bookstore because of lewd and obscene material. The only reason I balk at this is because lewd and obscene are based on a community standard(i.e. juries) where as copyright violations can be a little more cut and dry. Also, westlaw tells me there were some contradictory opinions, but not wanting to do an hour and a half project to read all the cases, I'll just leave it there.
But is this really a violation of the first amendment? That's going to be the interesting question with this, and really hope it works its way to the SC(because I think it has some nice facts to these cases).
I'm not really sure this is prior restraint, because they haven't physically silenced someone on the internet or the publishers of the content, they just forced them to do it someplace else. Is there any injunction in place? I thought they just seized the domain name.
It might be overbreadth, because this violates some free speech by getting rid of the offending content. But most of the cases dealt with statutes, so not sure how they'd apply it to a warrant for a seizure.
I'm not really sure there is much of a 4th or 5th amendment claim, since they got a warrant from a judge(unless they lied, which is pretty cut and dry).
Really, seizing a domain name is like plugging a hole in a sieve, which means 1) that it's dumb to try and do it because you're not stopping anything and 2) it's a tougher case for a first amendment claim because you're really not stopping anyone from doing anything. Either way, this should make for some interesting case law.
Not to be too much of a stickler for nuance, but prior restraint is stopping something before its been published(see pentagon papers). What your citing here is overbreadth, which is a valid argument.
Also, most judges will laugh at the argument that foreign decisions mean anything on our law, unless it's due to the enforcement of a treaty which both countries have signed onto. Just because the spanish flavor of IP came up with a decision, doesn't mean the US flavor of IP would follow that decision. It's not like we're following French or Italian law when it comes to google searches.
Wow, if that's not the pot calling the kettle black, I don't know what is.
1) It doesn't matter if they make the same money from infringing or non-infringing material. Please read Fonovisa v. Cherry Auction, in the first paragraph they give you the facts and the Vicarious Infringement section sets out the analysis clearly. In this instance, Cherry Auction ran swap meats, and leased to booth vendors for a daily fee, the booth, parking and advertising. The fee was static whether or not you sold infringing material(which is the exact same scenario as your trying to claim). They were found to be vicariously liable for the sale of the infringing products. This is directly on point to the issue you raised.
2) So if it's as simple as classifying something as hosting, why does anyone have to do anything? Why is there the DMCA? I mean if youtube just said it was hosting others material, why would it be liable, they only have all the software, interface and server space necessary so it can be done, but they don't actually do anything. Vicarious liability is really spawned out of agency principals(see suing an employer because the employee was in a car accident on company time), and I think this is a murky question, it's not as cut and dry as you have implied (box.net "almost certainly" has no liability). I'm just saying not to be surprised to see this make it to a court of appeals where they ultimately rule for box.net(my opinion).
All you need is a statement from a third party that says they used it to illegally distribute copyrighted music. I'm not saying that it's likely to find someone to admit to committing a crime, but weirder things have happened.
I like how people use my analysis and project it onto my opinions. It's actually weird, that I can dissociate my opinion from an analysis of what may be reality. I'm not saying that I like it, but at this point does anyone actually expect anything they do on the internet to be private?
1) I'm not sure where the 4th amendment applies here. Since when did the constitution apply to private parties? Since when does a novel actually apply to the law? Lets just look at what they're actually doing here instead of throwing up ridiculous straw men and slippery slope arguments.
2) My comment is more toward the extreme end of the infringement, not really small scale(which is next to impossible, as I've said before). If you're actually using the cloud service for what it is supposed to be(and I'll apologize, I was projecting Amazon's service onto this) having a high number of downloads of single files from a single user would be suspiciously like distribution of materials. I'm not saying that this is illegal(given the right terms it is not), but I don't think that it would stop a court from going through discovery.
3. I never said they should. I'm not their corporate counsel, and do not know every single specific about their system, but if I had to advise I'd give them 2 options. The first is allow the RIAA to look for zero liability on any prior infringement, and offer to remove anything that's blatantly infringing. It covers your ass, but you lose a ton of PR. The second is fight it, have a pretty good case(although it's not as cut and dry as Mike makes it out to be, which was my original problem with his post, he over exaggerated a relatively big issue) and make a statement, as well as get some good PR, but spend a bunch of money.
I think the storage locker analogy is my favorite one that I've seen so far. Like I said, if you look at the court cases (Napster, primarily) there would appear to be a salient argument to make that a judge would take seriously, if you had the right set of facts(which is why I called shenanigans on Mike for saying that there is nothing box.net could be liable for).
Now, do I think it will go to court, yes. For some reason the RIAA is too dumb to realize that more ways to access your music is a good thing. Do I think they win if it goes all the way to the court of appeals, if they have all the facts they need it might be 40% chance.
Seriously, they've contractually provided that they can police your info for porn and infringing content and take it down if they don't like. The whole terms of service
They don't host server space on the cloud? (supervising, essentially)
They don't make money from hosting this server space? (direct financial interest)
Mike, those are essentially the legal questions put into layman's terms. This is what made Napster illegal, the fact that they could control what songs went through their centralized server made them able to supervise the conduct.
Since they oversee(albeit somewhat indirectly) uploading and downloading on their server space, I can't see how you could actually think that there is not any type of legal question involved here. I don't think they have a great, or even good, case but it doesn't mean there is no case.
(1) it may be an ethical invasion of privacy, but I'm not sure if the user actually has any rights in this instance. For Amazon(the service I've actually done my Homework on), you essentially waive any rights you have and they are allowed to access the information at all times.
(2) I said this somewhere else, but I'll reiterate for convenience, it's not a question of whether the actual song was downloaded illegally. It's the use of the Box.net system to distribute music illegally that will get it into trouble. I agree, the actual music on the servers would be impossible to police, but who actually accesses it and how ofter are things that would be less outrageous.
(3) OK. Does Box.net not log where the account was accessed from? Is this impossible?
As for the last statement, I'm not really sure the generalization is correct(although the gun example probably is in most states due to legislation).
Contributory liability is easily avoided by the safe harbors, and doubt that it's even applicable here (I was just posting for reference and completeness)
Vicarious is where I think there's a shot, maybe about 20-30% depending on the judge and the jury. Certainly not cut and dry though. I think you're misreading supervise, the few cases I read make supervise sound somewhere between "control" and "effect." I don't think it would hinge on the interpretation of that. To me it's more of the ability to supervise, which I'm not sure they have except for extreme cases where people are using their servers to distribute music. The second part isn't intent driven. It's whether they make money from that activity(to be extremely blunt).
To me, this isn't an issue about the actual file, its the further distribution of files. I don't have exact knowledge of how box.net works,so let me know if I have one of the facts totally wrong, but I'm assuming it's very similar to Amazon which allows a user to upload and download music from his space on the cloud, and then stream it anywhere.
This means there could be 2 possible forms of distribution, either downloading the content by another user or the streaming of the content to someone who isn't the owner of that space on the cloud.
As far as your straw men, nowhere did I say I agree with the blind issuance of a subpoena(I haven't read it so I don't know what details they have). If they have evidence that people are using it for illegal purposes, then it's probably part of discovery once it gets into court, although I really think that initial hurdle will be tough to overcome.
My issue(and please re-read so you can make sure I'm not changing my story) was that Box.net was not liable for infringement, if it actually is occurring. I think that's something ripe to be in a case law book in about 5 years(2 for the DC opinion, 2 for further appeals, 1 for editing and printing into the book).
Why? If I'm missing how Box.net works let me know, but here are the rules.
Contributory Liability must have
(1) Knowledge of a third party's infringing activity; AND
(2) induce, cause or materially contribute to the infringing conduct
Vicarious Liability must have
(1) the right and ability to supervise the infringing conduct; AND
(2) a direct financial interest in the infringing activity
As I stated above, you can avoid Vicarious Liability if you show that there's no way you can police the activity (Google thumbnails), but that would likely be a question of fact and get past any 12b(6) motions(motion to dismiss for no claim).
I think that's the catch 22 for the RIAA. Really, the only thing they could do is subpoena download records and make a case that user X happened to download the same album from the site on 15,000 different occasions to IP address across the globe, which would imply(strongly I might add) that the individual was distributing music through the site.
The distinction is Box.net has some ability(although tenuous as it may be) to control what information is stored and accessed on its servers. Google(Amazon v. Perfect 10) was not found liable for using thumbnail images because it was impossible to police the entire internet and limit the images, but this is the extreme end and may or may not apply here. A non-internet example(which is where this flows from) was a swap meet operator where vendors sold copyrighted work without a license, and the Swap Meet was held liable(Fonovisa v. Cherry Auction). This seems a little more likely to be something that Box.net could police(if it's just users storing info on the service, but I'm not entirely familiar with this service). I just find the off handed comment that there is no real reason for liability to be disingenuous.
As for all the other analogies in the replies, the key here is control. Once you sell something to someone else, you lost control, and therefore liability for its use does not flow back.
I just find a lot of the posting that Mike does hypocritical because on one hand you have a post where he decries the use of shoddy statistics(see the ITC post he has today) and then wholeheartedly accepts a throw away statistic. I don't mind his critique of the ITC where there is actually a methodology and report that you can disagree with how they dots(that's a logical venture), I just think that it's poor "scholarship" to accept numbers when they fit your world view and question those that don't.
14,000 airports? Are you counting all of the tiny municipal airports? Wiki
makes it look more like 300-400 Commercial Airports(ones that actually have the TSA presence). You seriously think that there is an airport for every 2,200 people in the United States(300 million/14,000 airports)?
I agree with your second point though, I just don't understand why you'd need to make such ridiculous accounting errors to make it. That's my whole issue, don't let exaggerations deter people from the whole point, just let the real facts(which are probably still compelling) and actual issue do the talking, not misinformation.
My other problem is that the politifact article is pretty bare bones, and it matter of factly claims Allen acknowledged 3% of passengers during March. I don't necessarily doubt this, but why not link to primary material, or even quote him directly? Also, was March especially high(percentage wise) because there were less travelers? Is 2 million travelers a day the average for the month of may, or for the entire year? If it's the entire year, are you not skewing the numbers? It just seems like a wild extrapolation.