Kenneth Michaels 's Techdirt Comments

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  • On the post: Funniest/Most Insightful Comments Of The Week At Techdirt

    Kenneth Michaels ( profile ), 20 Jan, 2013 @ 07:48pm

    DHCP - the real criminal

    It seems that DHCP, not Mr. Swartz was the culprit behind the new counts 3 and 8 of the superseding indictment.

    The superseding indictment added the "sidestepping" in the following allegations compared to the first indictment:

    "On September 25, 2010, JSTOR blocked communication from that IP address.... On September 26, 2012, Swartz established a new IP address for his computer on the MIT network...which sidestepped the IP address block and allowed the laptop to resume downloading...."

    This "sidestepping" was not alleged in the initial indictment and occurred THE DAY AFTER the initial IP block. The MIT wireless network would have been using DHCP to assign IP addresses and it is this computer protocol that is likely responsible for AUTOMATICALLY "establishing" the new IP address, not Mr. Swartz, when the computer connected that day. This is likely the case particularly because the MIT network was assigning public IPv4 addresses (not easy to come by), the lease of which would be short.

    This is where Kerr's analysis goes wrong. Kerr assumes that Mr. Swartz "responded" to the IP address block by deliberately changing his IP address ("circumventing code-based restrictions by circumventing identification restrictions"). But Aaron in all likelihood didn't - it was automatic as a result of the protocol. So, Aaron did not circumvent "code based restrictions," DHCP did so without Aaron requesting. Pretty lame allegation by the US.

    So, DHCP is the criminal, not Aaron. Someone please arrest the authors of DHCP. At worst, the prosecutor could claim that Aaron did not comply with the terms of service on that day.

    This is important because these are the new counts (counts 3 and 8 on that day) that the US Attorney was piling on to bring the total penalty up to 50 years. The first indictment did not allege that Aaron changed his IP address to "sidestep" anything to allow continued downloading. It just mentioned that the IP address had changed (not good enough for an indictment). The theory for September 26 would have had to have been that Aaron violated TOS, not circumvention.

    So, the new counts for September 26, 2010, were bogus. Can someone please let me know if I'm missing something?

    Kerr: http://www.volokh.com/2013/01/14/aaron-swartz-charges/

  • On the post: Senator John Cornyn Asks Eric Holder To Explain DOJ Prosecution Of Aaron Swartz

    Kenneth Michaels ( profile ), 18 Jan, 2013 @ 07:01pm

    Dan Bull's Prediction

    I think Dan Bull predicted this whole situation in his song "SOPA Cabana" at 1:44:

    "Just annoy a big business and get fisted /
    They had a vested interest in Congress /
    If one messed with them, then there'd be one less"

    We have one less now, eh?

  • On the post: Law Professor James Grimmelmann Explains How He Probably Violated The Same Laws As Aaron Swartz

    Kenneth Michaels ( profile ), 17 Jan, 2013 @ 12:35pm

    Re: Trouble Shooting Network Connection?

    Note that changing the IP address (1) and MAC address were BOTH used as evidence of Aaron's criminal intent in the indictment.

  • On the post: Law Professor James Grimmelmann Explains How He Probably Violated The Same Laws As Aaron Swartz

    Kenneth Michaels ( profile ), 17 Jan, 2013 @ 12:33pm

    Trouble Shooting Network Connection?

    What I find troubling is that the common practice of wireless "trouble shooting" is turned into evidence of a crime.

    One explanation for why Arron changed his MAC address (without criminal intent) is that he was trying to figure out WHY he was kicked off the network. When your computer doesn't connect, you jog it into requesting another IP address. Problem solved! When you can't connect again, you say "hmmm, what is going on." You request another IP address, but that doesn't work. You ask, "is it a wireless policy because I'm hogging wireless bandwidth?" You then change your mac address. You connect. You conclude, "ah, it is a wireless policy, I'm hogging the bandwidth and MIT doesn't want that; I'll just use the wired connection in the closet." You connect in the closet but you don't want people messing with your laptop (or stealing it), so you cover it.

    What was "trouble shooting" turns into evidence of criminal conduct. Be careful next time you try to trouble shoot a network connection.

  • On the post: Megaupload to DOJ: Misleading Semantics Aside, You Told Us You Were Investigating Infringing Files, So We Preserved Them

    Kenneth Michaels ( profile ), 17 Jan, 2013 @ 11:25am

    Re: The Trial of Kim Dotcom

    That should say, "with all his assets seized," not "without all his assets seized."

  • On the post: Megaupload to DOJ: Misleading Semantics Aside, You Told Us You Were Investigating Infringing Files, So We Preserved Them

    Kenneth Michaels ( profile ), 17 Jan, 2013 @ 11:24am

    The Trial of Kim Dotcom

    The DOJ's plan was that this case would NEVER be tried in court. Without all his assets seized, sitting in US jail without Internet access, Kim Dotcom was supposed to have pleaded guilty for a lighter sentence. The DOJ would get its conviction, Megaupload would still be down (as a favor to the MPAA), and the details would be kept a secret.

    But, all did not go as planned. Kim already had lawyers who would defend him and knew the details of his business - and knew that the case was a sham. The NZ judges took a closer look at the case than anyone expected and did not just send Kim off to the US. Kim started a new business! All not part of the plan.

    "[T]he feds have used certain techniques that virtually assure convictions of both the innocent and the guilty, the wealthy and the poor, the violent drug dealer and the white collar defendant, indifferent to the niceties of 'due process of law,' particularly the right to effective assistance of legal counsel. In order to prevent a defendant from retaining a defense team of his choice, federal prosecutors will first freeze his assets, even though a jury has yet to find them to have been illegally obtained. They then bring prosecutions of almost unimaginable complexity, assuring that the financially hobbled defendant?s diminished legal team (or, as is often the case, his court-appointed lawyer) will be too overwhelmed to mount an adequate defense."

    How the Feds Disable Criminal Defense:
    http://www.forbes.com/sites/harveysilverglate/2013/01/03/black-whitey-how-the-feds-disable-criminal-defense/

  • On the post: Megaupload to DOJ: Misleading Semantics Aside, You Told Us You Were Investigating Infringing Files, So We Preserved Them

    Kenneth Michaels ( profile ), 17 Jan, 2013 @ 11:07am

    Assets Seized

    You said, "as Kim Dotcom has resources to fight back." Well, no. That is why the Feds seized all his assets, they were hoping he would have no resources to fight back. He still only has limited resources and his US lawyers have not been paid a dime.

    Must read: How the Feds Disable Criminal Defense
    http://www.forbes.com/sites/harveysilverglate/2013/01/03/black-whitey-how-the-feds-disable-criminal-defense/

  • On the post: Law Professor James Grimmelmann Explains How He Probably Violated The Same Laws As Aaron Swartz

    Kenneth Michaels ( profile ), 17 Jan, 2013 @ 12:38pm

    Three Felonies a Day

    Three Felonies A Day: How the Feds Target the Innocent by Harvey Silverglate. He also wrote this recent article that I think is relevant to the Megaupload case (but he doesn't mention it):

    How the Feds Disable Criminal Defense
    http://www.forbes.com/sites/harveysilverglate/2013/01/03/black-whitey-how-the-feds-disable-criminal-defense/

  • On the post: Aaron Swartz Could Have Killed Someone, Robbed A Bank & Sold Child Porn & Faced Less Time In Prison

    Kenneth Michaels ( profile ), 15 Jan, 2013 @ 11:29am

    Re: Re:

    The defendant has the right to a trial to confront his accusers at trial. The 6-8 month deal was without trial. The 7 years was with a trial - but the prosecution would not have to stick to that promise to only request 7 years of prison.

    So, the point is that to exercise his right to a trial, he risked a disproportionate penalty if found guilty - 50 years - or perhaps 7 years if the prosecution kept their promise. You think the prosecution would have kept that promise when one of the leaders of the SOPA protest was found guilty of computer hacking? Yea, right.

  • On the post: Why Copyright Shouldn't Be Considered Property… And Why A Return To 1790 Copyright May Be Desirable

    Kenneth Michaels ( profile ), 05 Dec, 2012 @ 10:19am

    Intellectual Property

    In law school, I was taught that there are two types of property: real and personal. End of story.

    The is no "intellectual property" per se, there is only copyright, patents, trademarks, trade secrets, etc. The term "intellectual property" was only used as a convenience to group these intangible things, and the word "property" was used because of some vague similarities to real or personal property. The word "intellectual" was used to take the grouping of these things out of and away from the full meaning of "property." The term "intellectual property" was never intended to suggest that copyright, patents, trademarks, etc., are a type of property along with real and personal property.

    There is no issue of whether copyright is "property" or not. Copyright is copyright. Patents are patents. Trademarks are trademarks. Owners of these intangibles are granted a "bundle of rights" that are simply not "property." I suggest moving away from the term "intellectual property" entirely and using the proper term under the circumstances: copyright, patent, trademark, trade secret, etc. There is no need for the term "intellectual property."

    The term "intellectual property" is being used by some to convince others that copyright, etc., is "property." It is a clever use of language, a wrong use of language, and it should be avoided.

  • On the post: Me.ga Domain Pulled Out From Under New Kim Dotcom Venture

    Kenneth Michaels ( profile ), 07 Nov, 2012 @ 01:20pm

    Re: Re: It's about National Security

    Yes, that is what I meant. Copyright infringement and enforcement is being treated as a national security issue. It is, of course, not a national security issue and just a special interest of a domestic industry.

  • On the post: Me.ga Domain Pulled Out From Under New Kim Dotcom Venture

    Kenneth Michaels ( profile ), 07 Nov, 2012 @ 10:51am

    It's about National Security

    Copyright is now a matter of national security in the US - to protect jobs and economy from foreign criminals and thieves. The US is using the same tactics used in terrorism cases, including the application of extreme diplomatic pressure (on New Zealand and Gabon).

    The US will do anything to stop Dotcom, to prevent him from defending himself, and to keep the contrived criminal law uncertain so they can continue to use it to shut down websites, particularly foreign ones that cannot easily afford to defend themselves in the US. The US dropped the criminal charges against rojadirecta.com just so they could keep the law uncertain ("contributory copyright infringement"), so they could continue to use this contrived law against Megaupload and other websites.

  • On the post: Fixing Software Patents By Actually Applying Existing Patent Law

    Kenneth Michaels ( profile ), 21 Sep, 2012 @ 06:14am

    functional claiming

    This is not a new idea. Regarding finding a good "test case," every competent patent attorney (defending an accused infringer) already knows to use the argument outlined above to attempt to invalidate claims in a patent (when applicable). Remember, patent attorneys try to invalidate patents in court just as often as they try to assert them in court.

    So far, courts have only bought the argument to a limited extent. The idea is to convince the judges; there are plenty of "test" cases out there.

    Also, just to help avoid confusion for some people, there technically is no subsection (f) of section 112 in the US patent laws. The applicable law is simply the sixth paragraph of section 112, and is usually referred to as the sixth paragraph (in contrast, other sections of the law expressly specify a subsection letter).

  • On the post: US Now Supporting Ridiculous Broadcast Treaty; Suggests It Could Cover The Internet Too

    Kenneth Michaels ( profile ), 20 Jul, 2012 @ 12:24pm

    Anti-Aereo

    If it only protects the "signals" (whatever that means), it sounds like an anti-Aereo service treaty. With the Aereo service, the signal is captured and then rebroadcast (over the Internet) without permission from the broadcasters. How much of a transformation of the captured signal would have to take place before you have only the content and not the same "signal." This treaty would also be an issue for Slingbox as well, possibly.

    So, someone at the MPAA convinced Mexico and South Africa to introduce this treaty.

  • On the post: Olympic Level Ridiculousness: You Can't Link To The Olympics Website If You Say Something Mean About Them

    Kenneth Michaels ( profile ), 13 Jul, 2012 @ 03:12pm

    Re: Re: using

    Although, action (e.g., use of a website) can certainly be considered acceptance of a contract. It depends on the circumstances.

    In the case of the Olympics, I don't think visiting the site would work as an acceptance of the contract. And, in the case of the Olympics, they NEED acceptance of the contract for them to limit the way you link.

    In the case of Techdirt, Techdirt does not NEED acceptance (i.e., permission or a contract) in any event. There is more of an argument in Techdirt's case that use of the website is an acceptance, basically because the user can't stop Techdirt from using the information as outlined. And if use doesn't amount to acceptance, then it at least provides notice to the user of what Techdirt will do with information it collects.

  • On the post: Olympic Level Ridiculousness: You Can't Link To The Olympics Website If You Say Something Mean About Them

    Kenneth Michaels ( profile ), 13 Jul, 2012 @ 02:58pm

    Re: using

    The Techdirt policy is very different than the Olympic site agreement. The Techdirt policy basically says, if you use our website, and you give us information about yourself, then you agree that we can use that information as we outline below. In other words, Techdirt says if you don't like what we are going to do with the information you give to us, then don't give it to us (i.e., don't use our site). In yet more words, the techdirt visitor agrees that *TECHDIRT* is allowed to do stuff. The visitor is not agreeing to what the *VISITOR* is allowed or not allowed to do.

    The Olympic site, on the other hand, says that if you use our website, then the user agrees to do/not to do certain other things.

    Different.

  • On the post: Google Works Out Deal Concerning 'Jew' Suggestions In France

    Kenneth Michaels ( profile ), 05 Jul, 2012 @ 01:34pm

    not a Jew

    I don't think Mike Masnick is actually Jewish because when you type "Mike Masnick" into Google, it does not suggest "Jew". And since Google keeps a database of these things, I tend to believe Google over Mike, the unreliable source that he is (just see his reporting about SOPA and PIPA).

  • On the post: US Continues To Try To Block Megaupload From Using Its Lawyers, Pretends It Has Jurisdiction Over The World

    Kenneth Michaels ( profile ), 15 Jun, 2012 @ 06:37am

    Copying the evidence

    Mike,

    Regarding the DOJ/FBI copying Dotcom's data, the FBI/DOJ should not be able to receive even copies of *irrelevant*, *personal* information about Kim Dotcom BEFORE the conclusion of the extradition hearing, if ever. The personal, irrelevant information about a NZ citizen should be protected against an intruding foreign power before the conclusion of the extradition hearing. Otherwise, the US could just bring charges against any NZ citizen and seize all their personal, irrelevant information without any protection for the NZ citizen by the NZ government. That is just wrong. That is what is going to sting the FBI/DOJ.

    In this case, it is the information that needs to be protected, whether a copy or not.

    Ken

  • On the post: US Continues To Try To Block Megaupload From Using Its Lawyers, Pretends It Has Jurisdiction Over The World

    Kenneth Michaels ( profile ), 14 Jun, 2012 @ 01:19pm

    Re: errors

    Also, the article reads, "the court argues that YouTube is a 'victim' of Megaupload and could be a witness." It should read that *the government* argues to the court that YouTube is a victim of Megaupload.

    Further, the article reads that a "New Zealand judge has found compelling -- that for criminal proceeding to take place against a foreign company, that company needs to be served." I think that should say that a US Judge has found this point compelling. The link provided relates to the reaction of the US judge, not the NZ judge. I have not heard anywhere that the NZ judge made any comment on this point. Could be wrong though, do let me know if I am.

  • On the post: Megaupload Filings Show Massive Flaws In US Case, Ask Court To Dismiss

    Kenneth Michaels ( profile ), 31 May, 2012 @ 10:39am

    Re: Second one is a must-read

    The timing of these motions by Megaupload et al. is also great. Not only does the US Government have to respond to the New Zealand order to produce evidence in the next three weeks, but they also have to respond to these two motions filed in the Eastern District of Virginia. The US Government will be very busy in the next few weeks, and will probably stumble and make errors (that would be expected by them in any case it seems).

    Also, if Megaupload et al. lose the motions in Virginia (at least the motion to release money), then this is great evidence that they do not have a chance of a fair trial in the USA. Such evidence can be used in the extradition hearings in August in New Zealand. So, if they don't get the money, they can argue they can't be extradited because they won't get a fair trial. If they get their money, then they will have won the motion in the USA (and maybe even Megaupload could be reborn). Wouldn't that be great if Mega is reborn in such short order, way before anyone would have guessed?!?!?!?

    Again, it is so clear that the US Government's strategy has been to prevent Megaupload et al. from adequately representing themselves. It is sickening, really.

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