Dish wins $65 mln for a piracy case against Sonicview

[DaddyOof4]

Published on:Jun 1 2012 4:34PM

US based Dish Network Corp has won a summary judgment against Sonicview USA Inc worth USD 65 million after the company was found guilty of selling receivers which allowed piracy of Dish programming.

The judge also fined a Sonicview dealer and his brother USD984, 800 for distributing almost 5,000 Sonicview products capable of pirating the programming.


The amount that Dish got is almost fifth of what it had sought from Soniceviw for violations of the Digital Millennium Copyright Act.


Sources report that around 307,401 Sonicview receivers and 17,500 hubs were distributed. Dish, based in Englewood, Colorado had earlier won a USD 215 million judgment last year against Viewtech Inc. and its founder Jung Kwak.

[TrailerTrash]

Meet the SV team, some names might pop out at you.


http://www.tele-satellite-global.com/TELE-satellite-0903/eng/sonicview.pdf

[Turdblossom]

Meet the SV team, some names might pop out at you.


http://www.tele-satellite-global.com/TELE-satellite-0903/eng/sonicview.pdf

Interesting; so which one of these guys is Mr. SV?

[surfinisfun]

Interesting; so which one of these guys is Mr. SV?

I'm not really sure why that would be even relevant or asked turd....let me know if you find out.lol

I bet the judge has a new in ground pool on the way from chuckie though.

[lemming]

Interesting that they found the receivers, in themselves are illegal to sell.

[jets1961]

Well I guess it's time for an iHub EMU... A real EMU windows and all. :)

[indianhole]

dish ever get any money from them

[Turdblossom]

Interesting that they found the receivers, in themselves are illegal to sell.

Good point. I haven't seen the actual court docs, but I can only assume dik was able to connect SV with the coders, thereby negating the "3rd party coder" claim. Also, I believe only the hubs have been banned? And retailers still sell the receivers?

[DualTest]

If I am not mistaken DN, in an earlier case, proved that there was proprietary code in the factory bins.

[surfinisfun]

If I am not mistaken DN, in an earlier case, proved that there was proprietary code in the factory bins.

I thought that was for VS but of coarse i could be mistaken on that.

[hondoharry]

I thought that was for VS but of coarse i could be mistaken on that.

I believe it was first proven in the Pansat case. How you market the product has a lot to do with the verdict.

[No-Name]

I didn't realize that FTA receivers are that popular. People I talk to have no clue about FTA. Over 300000 receivers? And that's just one brand. Wow.

[ripp]

Good point. I haven't seen the actual court docs, but I can only assume dik was able to connect SV with the coders, thereby negating the "3rd party coder" claim. Also, I believe only the hubs have been banned? And retailers still sell the receivers?

the owner of satscum recorded an phone call w/ B Sanz at the LV electronic show stating info on the receivers capablities, about the majic board that never came to be, the A1 TURBO board and all and then passed on to DN.

When alot of the busts were going on and N3 came to play, most of the SV and VS stock was shipped to south america away from authorities and where N2 was still be used and sales were more favorable. Only stock the authorities of were returns of defect units with 3rd party files, which is what got them cooked, particularly Vs, they had tons of them.

[Crazy Carl]

Me only comment is this for sonicview:
If your business is organized as a corporation or LLC, you and your business are separate legal entities. As such, in theory you could have no personal liability for the debts of your business, meaning that creditors can't take your house or other personal assets to pay your business's debts, even if your business can't pay them.

This is in some cases what happens and if fact if sonicview was a separate legal entities then what is there to collect?

[Mapleleaf69]

Me only comment is this for sonicview:
If your business is organized as a corporation or LLC, you and your business are separate legal entities. As such, in theory you could have no personal liability for the debts of your business, meaning that creditors can't take your house or other personal assets to pay your business's debts, even if your business can't pay them.

This is in some cases what happens and if fact if sonicview was a separate legal entities then what is there to collect?all sonicview has to do is file bankrupcy and they pay nothing.

[Crazy Carl]

all sonicview has to do is file bankrupcy and they pay nothing.

in that case bankrupt would be my answer lol

[lemming]

That is bad information. If the plaintiff can pierce te corporate vale, then they can find personal liability. On top of that, the court can even rule that the debt may not be discharged in...

[Gunsmoke2 - GS2]

Me only comment is this for sonicview:
If your business is organized as a corporation or LLC, you and your business are separate legal entities. As such, in theory you could have no personal liability for the debts of your business, meaning that creditors can't take your house or other personal assets to pay your business's debts, even if your business can't pay them.

This is in some cases what happens and if fact if sonicview was a separate legal entities then what is there to collect?



This is true that you and the company are two distinct legal entities thus the reason to incorporate. However in this judgment the three principles were held liable also plus two persons are held for judgment personally themselves for close to a million dollars. From the judgment. :-




Plaintiffs contend that Messrs. Sanz, Phu, and Pierce, each have been a “guiding spirit”
and “central figure” in the trafficking of Sonicview receivers and iHubs, and therefore are liable
for Sonicview’s copyright infringement. (Pls.’ Mot. 32:28–33:1.) They direct the Court to the
fact that all three defendants participated in running Sonicview’s day-to-day operations, such as
selecting the products to be sold, pricing the products, and controlling product distribution. (Id.
at 33:5.) The Sonicview Defendants respond that “none of the individual Defendants authorized,
directed or participated in any wrongful conduct, because none of them manufactured, sold or
marketed any Sonicview receiver or iHub for circumvention at the time they were distributed by
the individual Defendants.” (Defs’ Opp’n to Pls’ Mot. 9:1.)
Although Plaintiffs present more evidence of Mr. Sanz’s participation in the distribution
of Sonicview receivers, iHubs, and piracy software, the following facts are undisputed: (1)
Messrs. Pierce, Sanz, and Phu each has a one-third ownership of Sonicview; (2) each serves as a
director of Sonicview; (3) all three hold officer positions, Mr. Pierce as a vice president, Mr.

Sanz as the Chief Executive Officer, and Mr. Phu as the Chief Operations Officer and the other
vice president; and (4) each also took part in selecting the products that would be sold, setting
the pricing, and appointing distributors. These are uncontroverted facts. The last fact is
particularly important because it establishes that all three defendants were “guiding spirits”
behind Sonicview’s activities, including Sonicview’s distribution of piracy devices and piracy
software. Accordingly, the Court finds Messrs. Sanz, Phu, and Pierce are each individually
liable for the Sonicview receivers and iHubs distributed by their company in violation of the
DMCA and FCA.



Furthermore, the Clerk of the Court shall enter a judgment in favor of Plaintiffs in the amount of
$64,980,200 against the Sonicview Defendants, and $984,800 jointly against Duane Bernard and
Courtney Bernard.




GS2

[Gunsmoke2 - GS2]

No that would be contested and not so easy. A defendant tried to do that in the case and the court ruled against him. <br />
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GS2

[fifties]

Well let's get some reality going here;

the judgments DN received against the defendants are factual, no question, but as with other previous defendants, it can safely be assumed that they won't be collected on, as long as the defendants stay away from any form of satellite receiver piracy.

Should they re-engage in such an endeavor again, at that point DN will drop the hammer on them.

As an example, Bob (TDG) I believe had received a $54 million judgment against him, based on the number of files he posted, and DN's monitoring these types of sites and counting the number of downloads. What he actually had to pay was yes, a stiff fine, but do-able, and was allowed a lengthy time period in order to satisfy it.

DN's thrust is to stop distribution of piracy hardware/software, and have a lever over the purveyors of such, to keep it stopped.

[Turdblossom]

Well let's get some reality going here;

the judgments DN received against the defendants are factual, no question, but as with other previous defendants, it can safely be assumed that they won't be collected on, as long as the defendants stay away from any form of satellite receiver piracy.

Should they re-engage in such an endeavor again, at that point DN will drop the hammer on them.

As an example, Bob (TDG) I believe had received a $54 million judgment against him, based on the number of files he posted, and DN's monitoring these types of sites and counting the number of downloads. What he actually had to pay was yes, a stiff fine, but do-able, and was allowed a lengthy time period in order to satisfy it.

DN's thrust is to stop distribution of piracy hardware/software, and have a lever over the purveyors of such, to keep it stopped.

IMHO, what your suggesting would involve an after the fact binding agreement (contract). With out such an agreement, if (using your example) TDG won the lottery, what would prevent dik from swooping in for the big score? ethics? lol

[Gunsmoke2 - GS2]

IMHO, what your suggesting would involve an after the fact binding agreement (contract). With out such an agreement, if (using your example) TDG won the lottery, what would prevent dik from swooping in for the big score? ethics? lol


Yes there would have to be an agreement to that effect. The judgment did not contain an agreement like that but I have seen such an agreement in other cases. That usually happens with a settlement but there was no settlement in this case.


As far as trying to collect you never know. I have seen when providers did not do much or anything and other times were aggressive with going after homes and other assets with judgments.




GS2

[No-Name]

not exactly true bud. corporate officers/directors can be (rare) held liable in areas of gross negligence. Just take a look at Enron Corporation. Limited liability companys are very similar to corporations. In some states they are treated virtually the same as corporations. Bottom line, if an entity is grossly negligent, directors and officers had better be nervous.

Me only comment is this for sonicview:
If your business is organized as a corporation or LLC, you and your business are separate legal entities. As such, in theory you could have no personal liability for the debts of your business, meaning that creditors can't take your house or other personal assets to pay your business's debts, even if your business can't pay them.

This is in some cases what happens and if fact if sonicview was a separate legal entities then what is there to collect?

[fifties]

IMHO, what your suggesting would involve an after the fact binding agreement (contract). With out such an agreement, if (using your example) TDG won the lottery, what would prevent dik from swooping in for the big score? ethics? lol
That's exactly what it is; an agreement that the defendant never again engages in piracy, or else.

I doubt they would bother to follow the lottery winnings of their defendants. Their thrust is to simply insure that the defendant stays out of the piracy biz.

[ripp]

I believe it was first proven in the Pansat case. How you market the product has a lot to do with the verdict.

What did Pansat in was the testimony of D Fuss and 2 of his employees stating they were getting files from Globatech (I think that is the manufacturer of Pansats and Ariza 700 $ 800) but as he was being forced to buy tons of Pansats as well as his own and the files were costly, he decided to cut his losses with theb B^V suit of selling DN receivers and tuned on a few, Panarex, Globetech and Hivison. And seems like dominoes, they 1 by 1 turned others in.

[Gunsmoke2 - GS2]

What did Pansat in was the testimony of D Fuss and 2 of his employees stating they were getting files from Globatech (I think that is the manufacturer of Pansats and Ariza 700 $ 800) but as he was being forced to buy tons of Pansats as well as his own and the files were costly, he decided to cut his losses with theb B^V suit of selling DN receivers and tuned on a few, Panarex, Globetech and Hivison. And seems like dominoes, they 1 by 1 turned others in.


The testimony was damaging but I think what did them in was the design of the receivers determined by the court to be made for piracy of the plaintiff's signals. In the judgment against Panarex the judge noted this in detail and made no mention of the testimony against them.



GS2

[fifties]

The testimony was damaging but I think what did them in was the design of the receivers determined by the court to be made for piracy of the plaintiff's signals. In the judgment against Panarex the judge noted this in detail and made no mention of the testimony against them.



GS2
As I understand, it wasn't the hardware, but rather the firmware that did them in, since it contained Nagra information that would work in conjunction with a decryption bin.

[Gunsmoke2 - GS2]

As I understand, it wasn't the hardware, but rather the firmware that did them in, since it contained Nagra information that would work in conjunction with a decryption bin.


It was the firmware plus the receivers contained unauthorized copies of proprietary keys used by DN in their security system, plus the receivers included unauthorized implementations of Nag's patented international data encryption algorithm ( IDEA ) Not sure if that is considered part of the firmware but the court made references to the firmware plus the other stuff. I tried to attach it but don't think you can in this forum. Because of all that they concluded the receiver were designed for piracy.




GS2

[fifties]

It was the firmware plus the receivers contained unauthorized copies of proprietary keys used by DN in their security system, plus the receivers included unauthorized implementations of Nag's patented international data encryption algorithm ( IDEA ) Not sure if that is considered part of the firmware but the court made references to the firmware plus the other stuff. I tried to attach it but don't think you can in this forum. Because of all that they concluded the receiver were designed for piracy.




GS2
Consider the timelines;

in the fall of 2003, the Blackbird appeared (for $500), with the ability to unscramble DN and Bev. Very shortly after, spring 2004, bins were available for the Pansat 2300 and Fortec receivers.

Anyways, it wasn't until 2009 that DN got serious about taking Panarex to court. The question then begs, why did they wait so long, especially if they had all the evidence they needed? The answer, of course, is that they didn't.

They still had to tie the coder (Blacklist) to being paid by Panarex, for the bins. Forever (the admin at Al7bar.tk) even once PM'd me that DN had apprised him they had a good 5 spies on the site. They were well aware of what was going on, including watching BL release bins whenever an ECM hit.

[Gunsmoke2 - GS2]

Consider the timelines;

in the fall of 2003, the Blackbird appeared (for $500), with the ability to unscramble DN and Bev. Very shortly after, spring 2004, bins were available for the Pansat 2300 and Fortec receivers.

Anyways, it wasn't until 2009 that DN got serious about taking Panarex to court. The question then begs, why did they wait so long, especially if they had all the evidence they needed? The answer, of course, is that they didn't.

They still had to tie the coder (Blacklist) to being paid by Panarex, for the bins. Forever (the admin at Al7bar.tk) even once PM'd me that DN had apprised him they had a good 5 spies on the site. They were well aware of what was going on, including watching BL release bins whenever an ECM hit.



Its fairly common in general that sat lawsuits took time to materialise. How long was ftaforall around before they were hit with a lawsuit or dsstester. They did not need to tie any coder in those. Lots of vendors operated openly for extended times whether it was Dave or DN before having a legal problem. I think you can only speculate as to the timing.



GS2

[fifties]

Its fairly common in general that sat lawsuits took time to materialise. How long was ftaforall around before they were hit with a lawsuit or dsstester. They did not need to tie any coder in those. Lots of vendors operated openly for extended times whether it was Dave or DN before having a legal problem. I think you can only speculate as to the timing.



GS2
What were the complaints for the suits against those two websites?

If they were for hosting bins, was it after TDG case (where at that time the bins were considered illegal)?

[Gunsmoke2 - GS2]

What were the complaints for the suits against those two websites?

If they were for hosting bins, was it after TDG case (where at that time the bins were considered illegal)?



Actually now that I think of it I don't know if Dsstester was hit with a lawsuit. I know their site was taken offline. ftaforall was for files, aiding others etc. Bins in complaints have been brought up in several cases along with other things going back to about 10 years ago. For me it was always illegal but others saw it differently.



GS2

[Gunsmoke2 - GS2]

Charles Moscoe who owned decodernews site decided to cooperate for Dave when sued. He gave testimony against admins and mods saying they posted piracy scripts sometimes for payment and other times with no payment. These people did not defend themselves so they got default judgments, but its my belief/speculation right or wrong that if they did defend then they would have been found liable for posting them.



GS2

[fifties]

'Tester was never "taken" offline; the owner pulled the plug on his own. Now whether he was leaned on to do it, IDK, but of course there must have been some cogent reason.

There were plenty of sites offering help and bins, including the one I admin'd at, fta-newbies, none of which were served by Charlie. It could be that ftaforall was nailed because of their close association with Viewsat. I don't remember what the reason was that caused Tiki to go offline, given their close association with Pansat, but I don't recall them being served either.

[Gunsmoke2 - GS2]

'Tester was never "taken" offline; the owner pulled the plug on his own. Now whether he was leaned on to do it, IDK, but of course there must have been some cogent reason.

There were plenty of sites offering help and bins, including the one I admin'd at, fta-newbies, none of which were served by Charlie. It could be that ftaforall was nailed because of their close association with Viewsat. I don't remember what the reason was that caused Tiki to go offline, given their close association with Pansat, but I don't recall them being served either.


They simply do not go after every forum. They pick and choose to make a statement. To say you and others were not attacked is not in my opinion a sign of case law. The law is on their side I believe. Dave went after was it 67 sites in one lawsuit back in 2003. But many were not attacked before or after. Pirates den was attack, Dssunderground was not while they operated at the same time. If tester did it on their own then I would think that they must have had concern. I do think that since the site is directed to satscams that it was not completely voluntary as then the site would not be redirected. It might be voluntary based on legal pressure. I think if a site is given a choice before a potential lawsuit to comply or else that they are making a good decision to take the offer and avoid a lawsuit.



GS2

[fifties]

They simply do not go after every forum. They pick and choose to make a statement. To say you and others were not attacked is not in my opinion a sign of case law. The law is on their side I believe.
What law is that?

There is nothing illegal about running an FTA posting board, such as the one we are on now. And if hosting, or directing to a host for decryption bins is illegal, then they could have taken down every board; why leave a bunch of them up, for scofflaws to still be able to obtain bins?

[cooliebai]

this is very OLD news!!

[Gunsmoke2 - GS2]

What law is that?

There is nothing illegal about running an FTA posting board, such as the one we are on now. And if hosting, or directing to a host for decryption bins is illegal, then they could have taken down every board; why leave a bunch of them up, for scofflaws to still be able to obtain bins?



The claims would be from the DMCA, and the Communications Act. What did ftaforall do ? wasn't that an FTA posting board ? I think running a site that has files and aids others to violate a law like DMCA is open to Civil liability.


I think I am answering this again. They do not go after every site. They pick and choose. For example they choose to go after Rom10 and HasHhu but choose not to go after others. But really we are discussing law and if you take the approach it must be legal if they did not go after x amount of sites then that's like saying before any end user cases came that it must be legal for end users before the lawsuits.


As far as directing a host to decryption bins not sure what you are saying with host. Do mean directing with a link to decryption bins. ? A court on appeal had this to say in relationship to first admemdent rights ( On next post ). It addressed posting and linking of an earlier court decision and on appeal upheld that decision on the prohibition of posting/linking. DeCSS was determined to be a file that violated the DMCA.





GS2

[Gunsmoke2 - GS2]

"( On next post )" Continued



B. First Amendment Challenge

102
The District Court's injunction applies the DMCA to the Defendants by imposing two types of prohibition, both grounded on the anti-trafficking provisions of the DMCA. The first prohibits posting DeCSS or any other technology for circumventing CSS on any Internet web site. Universal II, 111 F. Supp. 2d at 346-47, ¶ 1(a), (b). The second prohibits knowingly linking any Internet web site to any other web site containing DeCSS. Id. at 347, ¶ 1(c). The validity of the posting and linking prohibitions must be considered separately.

1. Posting

103
The initial issue is whether the posting prohibition is content- neutral, since, as we have explained, this classification determines the applicable constitutional standard. The Appellants contend that the anti-trafficking provisions of the DMCA and their application by means of the posting prohibition of the injunction are content-based. They argue that the provisions "specifically target... scientific expression based on the particular topic addressed by that expression-- namely, techniques for circumventing CSS." Supplemental Brief for Appellants at 1. We disagree. The Appellants' argument fails to recognize that the target of the posting provisions of the injunction-- DeCSS--has both a nonspeech and a speech component, and that the DMCA, as applied to the Appellants, and the posting prohibition of the injunction target only the nonspeech component. Neither the DMCA nor the posting prohibition is concerned with whatever capacity DeCSS might have for conveying information to a human being, and that capacity, as previously explained, is what arguably creates a speech component of the decryption code. The DMCA and the posting prohibition are applied to DeCSS solely because of its capacity to instruct a computer to decrypt CSS. That functional capability is not speech within the meaning of the First Amendment. The Government seeks to "justif[y]," Hill, 530 U.S. at 720, both the application of the DMCA and the posting prohibition to the Appellants solely on the basis of the functional capability of DeCSS to instruct a computer to decrypt CSS, i.e., "without reference to the content of the regulated speech," id. This type of regulation is therefore content-neutral, just as would be a restriction on trafficking in skeleton keys identified because of their capacity to unlock jail cells, even though some of the keys happened to bear a slogan or other legend that qualified as a speech component.

104
As a content-neutral regulation with an incidental effect on a speech component, the regulation must serve a substantial governmental interest, the interest must be unrelated to the suppression of free expression, and the incidental restriction on speech must not burden substantially more speech than is necessary to further that interest. Turner Broadcasting, 512 U.S. at 662. The Government's interest in preventing unauthorized access to encrypted copyrighted material is unquestionably substantial, and the regulation of DeCSS by the posting prohibition plainly serves that interest. Moreover, that interest is unrelated to the suppression of free expression. The injunction regulates the posting of DeCSS, regardless of whether DeCSS code contains any information comprehensible by human beings that would qualify as speech. Whether the incidental regulation on speech burdens substantially more speech than is necessary to further the interest in preventing unauthorized access to copyrighted materials requires some elaboration.

105
Posting DeCSS on the Appellants' web site makes it instantly available at the click of a mouse to any person in the world with access to the Internet, and such person can then instantly transmit DeCSS to anyone else with Internet access. Although the prohibition on posting prevents the Appellants from conveying to others the speech component of DeCSS, the Appellants have not suggested, much less shown, any technique for barring them from making this instantaneous worldwide distribution of a decryption code that makes a lesser restriction on the code's speech component.28 It is true that the Government has alternative means of prohibiting unauthorized access to copyrighted materials. For example, it can create criminal and civil liability for those who gain unauthorized access, and thus it can be argued that the restriction on posting DeCSS is not absolutely necessary to preventing unauthorized access to copyrighted materials. But a content-neutral regulation need not employ the least restrictive means of accomplishing the governmental objective. Id. It need only avoid burdening "substantially more speech than is necessary to further the government's legitimate interests." Id. (internal quotation marks and citation omitted). The prohibition on the Defendants' posting of DeCSS satisfies that standard.29



GS2

[Gunsmoke2 - GS2]

Continued.



2. Linking

106
In considering linking, we need to clarify the sense in which the injunction prohibits such activity. Although the injunction defines several terms, it does not define "linking." Nevertheless, it is evident from the District Court's opinion that it is concerned with "hyperlinks," Universal I, 111 F. Supp. 2d at 307; see id. at 339.30 A hyperlink is a cross-reference (in a distinctive font or color) appearing on one web page that, when activated by the point-and-click of a mouse, brings onto the computer screen another web page. The hyperlink can appear on a screen (window) as text, such as the Internet address ("URL") of the web page being called up or a word or phrase that identifies the web page to be called up, for example, "DeCSS web site." Or the hyperlink can appear as an image, for example, an icon depicting a person sitting at a computer watching a DVD movie and text stating "click here to access DeCSS and see DVD movies for free!" The code for the web page containing the hyperlink contains a computer instruction that associates the link with the URL of the web page to be accessed, such that clicking on the hyperlink instructs the computer to enter the URL of the desired web page and thereby access that page. With a hyperlink on a web page, the linked web site is just one click away.31

107
In applying the DMCA to linking (via hyperlinks), Judge Kaplan recognized, as he had with DeCSS code, that a hyperlink has both a speech and a nonspeech component. It conveys information, the Internet address of the linked web page, and has the functional capacity to bring the content of the linked web page to the user's computer screen (or, as Judge Kaplan put it, to "take one almost instantaneously to the desired destination." Id.). As he had ruled with respect to DeCSS code, he ruled that application of the DMCA to the Defendants' linking to web sites containing DeCSS is content-neutral because it is justified without regard to the speech component of the hyperlink. Id. The linking prohibition applies whether or not the hyperlink contains any information, comprehensible to a human being, as to the Internet address of the web page being accessed. The linking prohibition is justified solely by the functional capability of the hyperlink.

108
Applying the O'Brien/Ward/Turner Broadcasting requirements for content-neutral regulation, Judge Kaplan then ruled that the DMCA, as applied to the Defendants' linking, served substantial governmental interests and was unrelated to the suppression of free expression. Id. We agree. He then carefully considered the "closer call," id., as to whether a linking prohibition would satisfy the narrow tailoring requirement. In an especially carefully considered portion of his opinion, he observed that strict liability for linking to web sites containing DeCSS would risk two impairments of free expression. Web site operators would be inhibited from displaying links to various web pages for fear that a linked page might contain DeCSS, and a prohibition on linking to a web site containing DeCSS would curtail access to whatever other information was contained at the accessed site. Id. at 340.

109
To avoid applying the DMCA in a manner that would "burden substantially more speech than is necessary to further the government's legitimate interests," Turner Broadcasting, 512 U.S. at 662 (internal quotation marks and citation omitted), Judge Kaplan adapted the standards of New York Times Co. v. Sullivan, 376 U.S. 254, 283 (1964), to fashion a limited prohibition against linking to web sites containing DeCSS. He required clear and convincing evidence

110
that those responsible for the link (a) know at the relevant time that the offending material is on the linked-to site, (b) know that it is circumvention technology that may not lawfully be offered, and (c) create or maintain the link for the purpose of disseminating that technology.

111
Universal I, 111 F. Supp. 2d at 341. He then found that the evidence satisfied his three-part test by his required standard of proof. Id.

112
In response to our post-argument request for the parties' views on various issues, including specifically Judge Kaplan's test for a linking prohibition, the Appellants replied that his test was deficient for not requiring proof of intent to cause, or aid or abet, harm, and that the only valid test for a linking prohibition would be one that could validly apply to the publication in a print medium of an address for obtaining prohibited material. Supplemental Brief for Appellants at 14. The Appellees and the Government accepted Judge Kaplan's criteria for purposes of asserting the validity of the injunction as applied to the Appellants, with the Government expressing reservations as to the standard of clear and convincing evidence. Supplemental Brief for Appellees at 22-23; Supplemental Brief for Government at 19-21.

113
Mindful of the cautious approach to First Amendment claims involving computer technology expressed in Name.Space, 202 F.3d at 584 n.11, we see no need on this appeal to determine whether a test as rigorous as Judge Kaplan's is required to respond to First Amendment objections to the linking provision of the injunction that he issued. It suffices to reject the Appellants' contention that an intent to cause harm is required and that linking can be enjoined only under circumstances applicable to a print medium. As they have throughout their arguments, the Appellants ignore the reality of the functional capacity of decryption computer code and hyperlinks to facilitate instantaneous unauthorized access to copyrighted materials by anyone anywhere in the world. Under the circumstances amply shown by the record, the injunction's linking prohibition validly regulates the Appellants' opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs.32

114
At oral argument, we asked the Government whether its undoubted power to punish the distribution of obscene materials would permit an injunction prohibiting a newspaper from printing addresses of bookstore locations carrying such materials. In a properly cautious response, the Government stated that the answer would depend on the circumstances of the publication. The Appellants' supplemental papers enthusiastically embraced the arguable analogy between printing bookstore addresses and displaying on a web page links to web sites at which DeCSS may be accessed. Supplemental Brief for Appellants at 14. They confidently asserted that publication of bookstore locations carrying obscene material cannot be enjoined consistent with the First Amendment, and that a prohibition against linking to web sites containing DeCSS is similarly invalid. Id.

115
Like many analogies posited to illuminate legal issues, the bookstore analogy is helpful primarily in identifying characteristics that distinguish it from the context of the pending dispute. If a bookstore proprietor is knowingly selling obscene materials, the evil of distributing such materials can be prevented by injunctive relief against the unlawful distribution (and similar distribution by others can be deterred by punishment of the distributor). And if others publish the location of the bookstore, preventive relief against a distributor can be effective before any significant distribution of the prohibited materials has occurred. The digital world, however, creates a very different problem. If obscene materials are posted on one web site and other sites post hyperlinks to the first site, the materials are available for instantaneous worldwide distribution before any preventive measures can be effectively taken.

116
This reality obliges courts considering First Amendment claims in the context of the pending case to choose between two unattractive alternatives: either tolerate some impairment of communication in order to permit Congress to prohibit decryption that may lawfully be prevented, or tolerate some decryption in order to avoid some impairment of communication. Although the parties dispute the extent of impairment of communication if the injunction is upheld and the extent of decryption if it is vacated, and differ on the availability and effectiveness of techniques for minimizing both consequences, the fundamental choice between impairing some communication and tolerating decryption cannot be entirely avoided.

117
In facing this choice, we are mindful that it is not for us to resolve the issues of public policy implicated by the choice we have identified. Those issues are for Congress. Our task is to determine whether the legislative solution adopted by Congress, as applied to the Appellants by the District Court's injunction, is consistent with the limitations of the First Amendment, and we are satisfied that it is.




GS2

[dishuser]

The claims would be from the DMCA, and the Communications Act. What did ftaforall do ? wasn't that an FTA posting board ? I think running a site that has files and aids others to violate a law like DMCA is open to Civil liability.


I think I am answering this again. They do not go after every site. They pick and choose. For example they choose to go after Rom10 and HasHhu but choose not to go after others. But really we are discussing law and if you take the approach it must be legal if they did not go after x amount of sites then that's like saying before any end user cases came that it must be legal for end users before the lawsuits.


As far as directing a host to decryption bins not sure what you are saying with host. Do mean directing with a link to decryption bins. ? A court on appeal had this to say in relationship to first admemdent rights ( On next post ). It addressed posting and linking of an earlier court decision and on appeal upheld that decision on the prohibition of posting/linking. DeCSS was determined to be a file that violated the DMCA.





GS2they chose hashhu and 10x cause they were selling...plain and simple

[Gunsmoke2 - GS2]

they chose hashhu and 10x cause they were selling...plain and simple


Pirates den was not selling. Was ftaforall selling. ? I think they choose high profile sites at times with a lot of traffic. Are you saying that sites that don't sale but have piracy files are safe because its not illegal or that the chances of them being targeted is less then one that sales. ?



GS2