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Latest Seizures Of Domain Names Again Suggests Homeland Security Is Twisting The Law - Magda Hassan - 08-02-2011
Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
from the you-said-what-now? dept
A few days after everyone already knew it had seized the domains of some sites that apparently were associated with streaming sporting events online, Homeland Security has put out its official press release about the domain name seizures. As many people thought, Homeland Security basically admits that it decided to seize these domains at this time because of the Super Bowl. Nice to see that Homeland Security is working for the NFL these days.
Eric Goldman was kind enough to send over the affidavit that Homeland Security used to seize the domains this time around (it's embedded below), but as we saw last time around, the affidavit itself is chock full of legal and technical errors, compounded by assertions-as-facts that seem to have little basis in reality. This is immensely troubling, especially given that the specific legal issues here are hardly settled law, and Homeland Security seems to be acting as if these cases are no brainers, allowing them to flat out seize domains, even when those websites have been declared perfectly legal in their home countries.
The biggest problem is that Homeland Security seems to suggest -- without a hint of doubt -- that merely linking to infringing content is criminal copyright infringement. That is a huge stretch. The affidavit appears to make it clear that it believes that these sites are guilty of direct criminal copyright infringement, rather than any sort of contributory copyright infringement. As we've discussed in the past, the courts have tended to say that embedding and linking can be contributory infringement, but not direct infringement. Homeland Security and ICE may be in for a bit of legal trouble trying to prove that embedding is direct infringement.
As with the last batch of seizures, it quickly becomes clear that Homeland Security was taking orders from private companies, and made absolutely no effort whatsoever to determine if the assertions made by those private parties (who might be helped by having Homeland Security shut down competitors and/or more innovative solutions) were accurate. For example, the affidavit, written by yet another recent addition to the Homeland Security force (though, unlike last time, when it was a kid fresh out of college, this time the guy, agent Daniel Brazier, was a police officer before this job came calling) seems to rely solely on information from various sports leagues (the NFL, NBA, NHL, WWE and UFC -- I'm really surprised that MLB isn't included, but that's probably only because it's the off-season), and appears to make no attempt to independently verify much of the information provided by those leagues. For example, without any evidence or proof, he asserts that the leagues "suffer significant negative impact from the unauthorized streaming of live television programming."
You would think that such an assertion would require proof. There is none. There are more assertions related to this, but no evidence that wider distribution of the video (including the commercials) does any actual harm. Agent Brazier claims that because of these streams, it impacts the league's ability to sell game tickets. This is laughable. Years ago, these same sports leagues would claim that having games shown on TV "hurt" the ability to sell tickets. Only recently have some of the leagues realized this is simply untrue. Larger audiences lead to more connected fans, meaning more fans willing to come out to see games live, because they know that the live experience is totally and completely different than the on-screen experience.
I find it disturbing that Homeland Security would repeat this blatant myth in order to support suppressing and censoring websites.
There are some other issues as well. Part of the argument against atdhe.net, ilemi and channelsurfing.net is that they embed from elsewhere online streams from MSNBC. MSNBC apparently told Agent Brazier that it "had not authorized third party distribution over the internet of its broadcasts" by these sites. One little problem: if I go visit MSNBC TV, I see live streaming of content from the channel. And, if I click on the "clip & share" link, I am given an option to embed the stream. Yup. It certainly looks like MSNBC does, in fact, give permission to embed its content on other sites. Anyway, I've embedded some video below from MSNBC. I'm curious if this makes Techdirt a criminal enterprise. Perhaps I'll find out after Homeland Security seizes our domain.
[URL="http://www.msnbc.msn.com/id/3032072"]
[/URL]
Furthermore, part of the claim of "criminality" on these various sites are the fact that advertisements are "periodically displayed at the bottom of the video." Of course, since these sites appear to be embedding the videos from elsewhere, that would suggest that the advertisements have nothing to do with the sites in question, but with whichever site the video originated from. Are Homeland Security's investigators really confusing such basic points on how the internet works? [/URL]
Finally, it appears that every one of these sites clearly stated that it did not host any content, and that it obeyed the local laws from where the server was located. The affidavit mentions this each and every time... and then doesn't seem to care at all about this. Now, the argument against this, of course, is that Homeland Security doesn't care one bit about the laws in other countries, and is only concerned about the laws in the US. That's all well and good... in theory. But reality makes this a bit more complex. If the website is hosted and operated in a foreign country, claiming that the domain name itself is subject to US laws seems like a huge stretch, and will only serve to increase concerns from foreign countries that the US government has too much control over the internet. Even worse, in the case of Rojadirecta, Agent Brazier seems to flat-out admit that the site targets people in Spain by highlighting how much traffic it gets in Spain. So if the site is hosted in Spain and clearly targets people in Spain -- and the affidavit admits this -- why is a US court saying the domain can be seized?
Unlike last time, when the magistrate judge in question literally rubber stamped the affidavit, at least magistrate judge Frank Maas appears to have decided to really sign this document. However, there is no indication that he followed the rules required under Fort Wayne Books v. Indiana, which requires a higher standard than probable cause when attempting to take "materials presumptively protected by the First Amendment" out of circulation. There is no indication that any effort is made to surpass these basic First Amendment hurdles. There is no indication that the judge took the time to find out whether or not these seizures were required to preserve evidence, as case law suggests is necessary in such circumstances.
Once again, it appears that Homeland Security is acting as something of a rogue cowboy operation, where it feels no compunction about seizing domains under an extremely questionable legal theory that linking or embedding is somehow direct copyright infringement. I've now spoken to numerous lawyers about this, and I can't find one who thinks this is a clear case of criminal copyright infringement. Similarly, there are serious questions concerning the fact that these websites are all hosted in foreign countries, and all of them made it clear that they sought to obey the laws in their own countries. Even more amazing is that despite the fact that many of these issues were raised previously, Homeland Security has simply decided to forge ahead. One hopes that a court will put a stop to these seizures before too long.
http://www.techdirt.com/articles/20110203/01402812935/full-affidavit-latest-seizures-again-suggests-homeland-security-is-twisting-law.shtml
Full Affidavit at link above
Latest Seizures Of Domain Names Again Suggests Homeland Security Is Twisting The Law - Peter Lemkin - 08-02-2011
Football and Copyright are now even HS issues? I wonder what the politically correct underwear is now...let alone political thoughts.
Latest Seizures Of Domain Names Again Suggests Homeland Security Is Twisting The Law - Ed Jewett - 01-12-2011
U.S. JUDGE ORDERS HUNDREDS OF SITES "DE-INDEXED" FROM GOOGLE, FACEBOOK
November 30th, 2011Via: Ars Technica:After a series of one-sided hearings, luxury goods maker Chanel has won recent court orders against hundreds of websites trafficking in counterfeit luxury goods. A federal judge in Nevada has agreed that Chanel can seize the domain names in question and transfer them all to US-based registrar GoDaddy. The judge also ordered "all Internet search engines" and "all social media websites"explicitly naming Facebook, Twitter, Google+, Bing, Yahoo, and Googleto "de-index" the domain names and to remove them from any search results.
The case has been a remarkable one. Concerned about counterfeiting, Chanel has filed a joint suit in Nevada against nearly 700 domain names that appear to have nothing in common. When Chanel finds more names, it simply uses the same case and files new requests for more seizures. (A recent November 14 order went after an additional 228 sites; none had a chance to contest the request until after it was approved and the names had been seized.)
How were the sites investigated? For the most recent batch of names, Chanel hired a Nevada investigator to order from three of the 228 sites in question. When the orders arrived, they were reviewed by a Chanel official and declared counterfeit. The other 225 sites were seized based on a Chanel anti-counterfeiting specialist browsing the Web.
That was good enough for Judge Kent Dawson to order the names seized and transferred to GoDaddy, where they would all redirect to a page serving notice of the seizure. In addition, a total ban on search engine indexing was ordered, one which neither Bing nor Google appears to have complied with yet.
Missing from the ruling is any discussion of the Internet's global nature; the judge shows no awareness that the domains in question might not even be registered in this country, for instance, and his ban on search engine and social media indexing apparently extends to the entire world. (And, when applied to US-based companies like Twitter, apparently compels them to censor the links globally rather than only when accessed by people in the US.) Indeed, a cursory search through the list of offending domains turns up poshmoda.ws, a site registered in Germany. The German registrar has not yet complied with the US court order, though most other domain names on the list are .com or .net names and have been seized.
The US government has made similar domain name seizures through Operation In Our Sites, grabbing US-based domains that end in .com and .net even when the sites are located abroad. Such moves by themselves would seem to do little to stop piracy in the long-term; they simply teach would-be miscreants to register future domain names in other countries.
Related: YaCy: Free Software Activists to Take on Google with New Free Search Engine
Posted in Dictatorship, Perception Management, Technology
Latest Seizures Of Domain Names Again Suggests Homeland Security Is Twisting The Law - Peter Lemkin - 01-12-2011
It is getting to the point that I'd not trust a social networking site or site that stored any data about the users of the site UNLESS they were NOT based in the USA - and thus free of US legal shenanigans! America is becoming dangerous and toxic. That the Judge mentioned above doesn't even seem aware that there is anything outside of the EMPIRE is typical of the American way of thought after the propaganda blitz of the last decades. It is wrong that American wants to rule the World; additionally, we have no knowledge of that rest of the world - not their history, culture, peoples, et al.
Aside:
I'll never forget riding in a train in Europe heading to Amsterdam. An American woman entered my compartment and we eventually started to talk. I asked where she was coming from, as she mentioned she had had to make several train connections. She thought for a moment....then said...'Gee I don't remember the name of the city, it was large, I was there for only two weeks...oh, and yes, it had a very big steel girder tower in it." Shocked, I asked if perhaps she had stayed two weeks in Paris. She thought and shook her head. "That could have been the name....but I don't remember." Curious, I asked her how she spent most of her time in this unnamed city. She said 'Shopping." One wonders if at the end of the Roman Empire travelers passed through regions totally oblivious to the names, history and culture.
Latest Seizures Of Domain Names Again Suggests Homeland Security Is Twisting The Law - Ed Jewett - 01-12-2011
Peter Lemkin Wrote:... An American woman entered my compartment and we eventually started to talk. ....
You had a close encounter with Michelle Bachmann?