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Copyright Infringement and the FBI

By farl in News
Tue Jul 18, 2000 at 01:22:59 PM EST
Tags: Freedom (all tags) 		Freedom

About 70 days ago the FBI raided my house. Now I am looking for information and help, and also to find out if anyone else out there has had similar problems to me.

I am wondering if anyone here can help me. I am not sure whom to turn to for information and help, and I have been pretty unsuccessful in finding any real help on the Web in regards to my problem. It was recommended to me that I try this site, and after looking around here a bit, I am happy to have found it regardless of any help I may or may not receive.

About 70 days ago, the San Diego's FBI Computer Crime Division raided my house. They had a search and seizure warrant for all of my computer equipment. They promptly seized and still have in their possession, all of my computer equipment. They are after me for "alleged copyright infringement".

To put this in perspective, I will give you the background information on why this was done. I run/ran a Hotline server. If you are unfamiliar with this technology, you can find out more detailed information at http://www.bigredh.com. Basically it is a very strong powerful technology that allows for a mix of FTP, chat, news boards and messaging services. Its real strong point is that it allows dynamic IP servers to be found very easily, regardless of how often their IP's change, with the use of its Hotline Tracker system.

I ran a very large, very busy server. With close on 3,000 regular users, anything from 10 to 100 people logged into my home computer at any one time, 4,000 average daily connects, and close on 15,000 file transfers daily, it was the busiest non-warez site in the world. My userbase comes from all over the world, with close on 120 different countries logging in on a regular basis.

The server was a Graphic Designers haven, with the strongest emphasis on participating in the main chat room. It was used a resource for designers all over the world. They could come here and ask any question, and have it answered usually within a few minutes, no matter how esoteric it was. In fact, users prided themselves on being able to answer these esoteric and technically challenging questions. You could also use the many other users logged in there to bounce your ideas and proofs off of. As you were working on a project, you could post a proof to a website, or to the server itself, and have everyone else who was logged in critique it and give you valuable feedback. Many users would just log on to take part in the chat, because of the strong community that existed there. It was a one-of-a-kind community in the Hotline arena.

Many users of the server would meet in real life, and form friendships and business partnerships through the server. MacWorld (San Francisco, January 2000) was one of the many times that the users met together in person. It was a great success and really gave a good boost to the community on the server.

Another aspect of the server, and the one that caused the problem in the end, is that it has a good file storage and transfer aspect. I allowed people to store their legitimate backups of their software, art, music and other files on my server. The owners could then access their materials from anywhere in the world when they needed them, as many of them are business travelers who have limited space to carry their work with them. Unfortunately, due to space constraints, I was forced to create a general file area, in which I sorted and stored everything. This removed duplication and allowed for far more files to be archived. The problem here is that any user could then access any file. I relied on a legal agreement that every user is forced to agree to as they log into the server, to stop potential copyright issues here. You can not log into the server without agreeing to the agreement. If you did not agree, it would kick you off the server. In this agreement, I let people know about the copyright issues, and informed them that downloading of other people's software is illegal, and should they do it, they assume responsibility for their own actions. The server is NOT responsible for other people pirating software.

At no point in time did I ever solicit software, claim to own the software on my server, or use the software on my server. I did not go out and personally find the files in order to help create a better "file environment" in order to attract users.

I thought that this would cover me. Apparently I was wrong. The intention was not to create a "legal loophole" to avoid copyright infringement, but to genuinely stop it. I have always advocated that people buy software and support the creators. Oftentimes users on the server would attempt to buy backups from me, and these offers were always loudly and publicly refused. Also in the agreement, was the note that any company/person that creates/owns the software that might be stored on my server, was more than welcome to contact me, and the material in question would immediately be removed from the server. I made no claim to owning any of the material. I just merely stored it. If there was a problem with materials in question, it did not matter to me if it was deleted. For example, about 8 months ago I was contacted by a font designer who wanted me to remove his fonts from the server. Within 5 minutes they were removed from the server and then deleted from the computer.

The problems started when 4 companies decided to pursue legal action against me, rather than just contact me directly. Émigré, House Industries, Phil's Fonts, and Art Parts contacted the FBI in San Diego and made complaints against me. They claimed that they could download their software from my computer, and that made me a "unauthorized distributor" of their software -- a pirate. They made no attempts to contact me or to resolve the issue in an easy manner. In my one conversation I have ever had with any of these 4 companies, Tim Starback of Émigré, said when I asked him what they would like me to do, that he wanted me to go to jail and lose all my money and computer.

The FBI raided my house and seized my computer and all peripherals.

The FBI then raided my house and seized my computer. To their credit, I must say the FBI handled it in a very professional and courteous manner, and I have no complaints with their actions. The companies made several claims to the FBI that they had asked me to remove the materials in question on several occasions (which they never did), and that I had refused them. When I later spoke to the FBI and asked them if they had received any proof of this, they claimed that they had not.

The server never advocated piracy in any form. It was strongly against it. All the users on the server understood this. Furthermore, there was never any financial gain in it for me. The server and its services were public and free to all. My benefit from the server came from the help I got with projects I was working on, and the resources of the peer community it provided, and the many good friends and contacts I made through the server.

My question now is, I have been advised that the FBI has taken this to the US Attorney who wishes to prosecute me. I do not know any details more than this. They are holding my computer for evidence now, although they have said that they will allow me to retrieve my personal files from the computer at some future date. I do not have the money to approach an attorney for legal advice, and all the help I could find on the Web was nonspecific. I would like to know if you know of anywhere I can go to get help with this, and to find out what my legal options and possible consequences are. They have not charged me with anything yet, and until they do, I cannot get a public defendant. However, I am not happy with leaving my most expensive (and valuable) possession in the hands of the US Attorney indefinitely. Can you please provide me with any knowledge on this subject that you have?

Thank you in advance for your help. I would welcome the opportunity to talk with you directly about this if you should wish to.

Sincerely,

Farl

farl@sketchwork.com
sketchwork@yahoo.com
www.sketchwork.com

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Copyright Infringement and the FBI | 96 comments (95 topical, 1 editorial, 0 hidden)
If I were in your place... (2.33 / 3) (#1)
by marlowe on Tue Jul 18, 2000 at 12:37:44 PM EST

I'd make as big a stink as possible. Hire a lawyer, of course. But also look for publicity. At the very least post your story everywhere you can. Try to get some news coverage - of your side of the story, that is. The point is to embarrass the hell out of these assholes, and try to discourage them and their type from doing it again to anyone else. They're trying to intimidate you. Intimidate them back. And if they're too stupid to relent, at least you'll have punished them a bit.

(All comments above are predicated on the assumption that the victim is telling the truth about the details. Particularly that bit about not having been contacted.)
-- The Americans are the Jews of the 21st century. Only we won't go as quietly to the gas chambers. --

I'm not sure the net is the place for this type of (3.70 / 3) (#2)
by scheme on Tue Jul 18, 2000 at 12:38:44 PM EST

There are quite a few groups that work pro bono that may be willing to help you out. I would suggest asking the ACLU and the EFF. In general. I don't think you are going to get very many useful answers since you really need an attorney to help you sort out problems like this especially since you make it seem like you will be prosecuted under the federal copyright laws.


"Put your hand on a hot stove for a minute, and it seems like an hour. Sit with a pretty girl for an hour, and it seems like a minute. THAT'S relativity." --Albert Einstein
Time for the EFF (3.00 / 3) (#4)
by blixco on Tue Jul 18, 2000 at 01:27:20 PM EST

A good time for John Perry Barlow, et al to come to the aid of a website. The FBI acting like private cops for these four companies is fairly deplorable (do they no longer investigate before they act?) and the companies themselves should be ashamed.....but I guess that can be said of most companies.

The site, as I remember it, was VERY supportive of copywrites. One of the problems I had with it, actually (I'm in a 'no copywrite is a good copywrite' mode, bear with me). This was a nice resource. Hopefully legal aid / eff can help.
-------------------------------------------
The root of the problem has been isolated.
Ideas for help (4.00 / 5) (#5)
by Anonymous Hero on Tue Jul 18, 2000 at 01:53:04 PM EST

By all means go to www.eff.org and see if they can help you. My thoroughly amateur and ignorant take on it is that you would have to show common carrier status, IE you didn't take editorial control of the materials, and show that you did remove materials when asked. That might keep you out of jail, but you may have to sue the FBI to get your stuff back, if it works anything like property seized on suspicion of drug involvement. But as somebody else said, you're obviously in a lot of trouble here, and you need professional help, not the IANAL advice of chuckleheads like me. There may be other organizations besides EFF and ACLU, I don't know who. If you can't find pro bono help then maybe a lot of publicity and a legal defense fund would be the ticket. I'm actually kinda surprised that I haven't heard about this on the news already, it seems like just the sort of story that tends to get picked up. Your 3000 users must be kinda ticked, so maybe they can seed your legal defense/publicity as well. Not to mention the Hotline company, which might want to defend the right for people to run their servers--if you get publicly nailed, it might throw cold water on their sales, and if they engage their enlightened self-interest they might help you out.

Send it to slashdot (4.00 / 6) (#7)
by Anonymous Hero on Tue Jul 18, 2000 at 02:23:15 PM EST

As much as some people here dislike slashdot (¨That Other Site¨), it´s still the most noisy/noise-maker weblog you can find. IF (and that´s a big if) you somehow can have your history picked to be posted (good luck), the resulting noise might help you (by frightening the companies and bringing unsolicited help to your side).

more comments (4.30 / 3) (#8)
by crayz on Tue Jul 18, 2000 at 02:48:37 PM EST

Glad you got here, I wasn't sure if you read my message or not. People here seem to be saying the same kind of thing: try getting it on Slashdot, contact the EFF, and maybe the ACLU.

Basically, as I see it, you're going to need a good lawyer for this, whether you get one pro bono from one of these groups, or you get a fund set up from Slashdot, or something else.

The other thing is that you gotta get the FBI to let you copy the files off your HD. That is basically all the evidence you have, and you need it. Some specific things I can think would be useful are: the text of the "Agreement" for your server(I sure hope you had one of those), news archives where you tell people not to pirate, or where other people complain that they want to pirate and you won't let them(that other person who posted here about using your service - try to contact him to be a witness if need be). I don't really think you can prove that you weren't contacted by the companies, but you can prove you removed software for the other company, perhaps get that guy to testify to as much, and then give them the burden of proving they sent something to you.

Also, I don't know if you used the software people uploaded or not. If you didn't, you could try to show that to support your argument that you weren't aware of illegal activities. If you did use it, cross your fingers and hope that no one notices.

You also want all the records you can get of legitimate things happening on your server: any FAQs you had, help you or others gave to people, legal software you distributed, etc.

But again, if you haven't already, submit the story to Slashdot. It's a slim chance, because they get hundreds of submissions and post very few, but you have a very interesting story and it's the kind of thing they might like. Slashdot gets so many hits that you could really stir up a hornets nest for those companies, and maybe make them decide it's not worth it to stick it to you.

my slashdot submission (3.00 / 1) (#10)
by wildmage on Tue Jul 18, 2000 at 03:19:46 PM EST

Here's my submission to Slashdot:

4 companies are currently trying to have a graphic's artist sent to jail for hosting a graphics community site using Hotline. The companies say they could download their copyrighted software from his site, so they took it directly to the FBI. The artist says that he strongly opposes copyright infringement and that he is very vocal about it. There was little to no dialog between the artist and the offended companies except the following: "Tim Starback of Émigré, said when I asked him what they would like me to do, that he wanted me to go to jail and lose all my money and computer." I believe the artist's intentions were genuine and he is currently pleading for help from the community. --Wildmage

Can anyone do any better?

Wildmage

-------------
Jacob Everist
Memoirs of a Mad Scientist
Near-Earth Asteroid Mining

This makes a case for strong crypto... (4.00 / 1) (#11)
by shadowspar on Tue Jul 18, 2000 at 03:45:52 PM EST

I hope you come out on top. In addition to the good stuff people have mentioned above, Userfriendly will often post a blurb about your story if you ask them.

Does anyone else think "strong crypto, encrypted HD" when they see a story like this? Between this, and employers having employee's personal computers seized as evidence, I'm getting paranoid.
-- Drink Canada Dry! You might not succeed, but you'll have fun trying.

Don't expect mony from 'the community' (4.33 / 3) (#12)
by mr on Tue Jul 18, 2000 at 03:47:26 PM EST

Look at the PHRAK /Craig Neidorf/911 manual.

He had a 6 figures legal bill. Last I heard, "the community" gave under $5000 TOTAL.

I was 450 somethin' (2.00 / 1) (#15)
by wildmage on Tue Jul 18, 2000 at 04:33:16 PM EST

When I submitted I was about 450. That's a huge gap :P

Wildmage

-------------
Jacob Everist
Memoirs of a Mad Scientist
Near-Earth Asteroid Mining

illegal search and seizure (3.30 / 3) (#16)
by eries on Tue Jul 18, 2000 at 04:48:16 PM EST

Sounds like illegal search seizure if you were not contacted and they had no proof of wrongdoing. If this was a non-computer case, they would never try something like that, but when software "piracy" is involved, everything gets all confused. I have to agree with earlier posts - Slashdot is probably the way to go. It's important that companies get a bad rap for encouraging this kind of stuff. Other than the EFF and ACLU, you might even try sending a note to the Libertarian Party (lp.org) who I'm sure would do a press release about this (they are fighting the FBI's power to do these kinds of things).
Promoting open-source OO code reuse on the web: the Enzyme open-source project
FBI raiding systems (4.00 / 1) (#17)
by cable on Tue Jul 18, 2000 at 04:50:57 PM EST

Many BBS systems got raided by the FBI for having pirated files online. Many SYSOPS where unaware that they had said files on their hard drives. Most of them allow uploads to be immediately available for downloads, and that is a danger. Some d00d could upload the latest warez and then next thing you know the FBI is knocking at your door about it.

Rusty and Eddie's BBS got busted for the same thing back in the later 1980's I believe. In the mid-1990's a local BBS in St. Louis, The File Cabinet III, hosted by Tom Wyrik, was busted and all his computer equipment was seized. I do not know the outcome of these cases, but maybe you can reference them in your case? You lawyer should be able to search for those names.

------------------
Only you, can help prevent Neb Rage!
Almost Happened to Me (2.00 / 2) (#19)
by Neuromancer on Tue Jul 18, 2000 at 05:00:56 PM EST

One of my ex-gf's friends told me that she would the FBI on me for "hacking" into her BF's computer, because it crashed (she made a lot of stuff up about me that made my gf my ex-gf, but lets not get into that). I handed her a clue on a platter when I said that I'd have lawyers crawling out her ass because I hadn't done anything, and I could prove it. (Of course, I'm pretty fearful of the FBI raiding, since they seem to do it at the drop of a hat anymore). Anyways, my advice. If they're gonna take legal action, sue sue sue. Fuck anyone who is going to use the law to beat you down man. Get a lawyer and show them that you won't take their shit. Sue them, counter prosecute, don't take no for an answer. If they don't have good grounds to do shit to you, then you can get a full refund on the beatdown they gave you with some interest, and that's ANYONE. Contact one of the many groups out there to help fund you. You have the right to a lawyer, don't take no for an answer on that.

REsponse to Responses (5.00 / 2) (#21)
by farl on Tue Jul 18, 2000 at 05:30:25 PM EST

Yes, I did have a legal agreement, a very well worded one that was vetted by a lawyer.
No I cannot prove they did not try to contact me, but the unus there is on them proving they tried to contact me.

I will post to slashdot and hope. I figure the publicity issue is the best route to take, because I do NOT have any money. I am one of those typical starving artists who lives check-to-check. My regular users of my server have offered to send me money, but in no way would it approach the costs of a lawyer.

As for the FBI acting as the watchdog of some poor little font company (and YES! this is about FONTS! of all things), that is a problem, and hunting them in the news is a good idea. I have a few contacts at some major publications around the world, so I will be pursuing that as soon as I find out what the hell is going on, and if the US Attorney is going to charge me, or rather with what they are going to charge me.

Thanks for the info. Please keep it coming.

Farl


Farl
k5@sketchwork.com
www.sketchwork.com
That really sucks (3.00 / 2) (#22)
by chicmome on Tue Jul 18, 2000 at 06:08:50 PM EST

Sounds to me like you're completely in the right on this one. If you can get your hands on the August 2000 issue of Web Techniques there is an interesting article by Lincoln D. Stein in his Webmaster's Domain column about mp3.com and copyright law. Specifically appicable to your situation is Scenario 5 on page 15. (These scenarios are pointing out inconsistencies in copyright law.)
The storage service notices that hundreds of users uploaded MP3 files ripped from the same CD and encoded with the same MP3 encoding software -- identical in every way. This is vastly inefficient, so the service uses a disk compression algorithm to consolidate hundreds of copies into a single copy and then makes links from each personal space back to the central copy. This This is now looking less like a safe-deposit box system and more like a savings account [see the article for a full explanation of this analogy.] The distinction between each user's copy of an MP3 has been lost and instead it is the ownership accounting information that matters. Has the [copyright] line been crossed now? Surely not. At most the company can be willfuly accused of destroying it's customer's files, not of making unauthorized copies.
There are variations here which according to the letter -- but not the spirit in my opinion -- of the law may be potentially sticky.
  1. the service in question is commercial. However at some point in time there was a big legal decision that determined that a company is to be considered an individual. I don't know any specifics here.
  2. The files in question are MP3 versus software. Copyright wise I don't believe there would be a distinction because both have contractual obligations related to their use. i.e. You can't make unauthorized broadcasts, duplicates, etc. of CDs/tapes and the same pretty much goes for software.
  3. This is the ugliest. The scenario in question stipulates links from personal space, rather than being community based. That implies that it would be impossible for others to access the file in question. Legally I would think that a mandatory agreement to use the service would at least have some bearing on this.
I think you should get a lawyer and sue. You've clearly stated that you have a policy of responding immediately to complaints about the existence of copyrighted material. You have hard evidence to back it up (I hope you remember the name of that font designer.)

It sounds like they must have read your legal disclaimer to even access the system, which means that they should have been aware of your desire to be contacted. By suing without first at least attempting contact I think they were entirely unreasonable and that should play very negatively in the courtroom.

I would obtain real legal assistance from someone with experience in copyright law. If you are in the right on this one I think you probably have a very strong case.

Disclaimer: I'm not a lawyer, I can't certify the accuracy of Lincoln Stein's statements.

Best of luck.

Chicmome

A few suggestions (4.00 / 2) (#23)
by Anonymous Hero on Tue Jul 18, 2000 at 06:19:15 PM EST

I'm not a lawyer, so take this for what it's worth. 1) Do not believe anything anyone on the government side tells you. They are not your friends in this, nor are they obligated to tell you the truth. The FBI's contention that the U.S. Attorney is thinking of prosecuting may or may not be true. Assume that anything they tell you is for the purpose of gathering further evidence for prosecution, or to scare you into making some mistake that will be to the prosecution's advantage. 2) You should refuse to say anything or provide any information that isn't required by a search warrant until you have a lawyer. If you have to wait for an indictment in order to get a public defender to represent you, then do so. 3) Besides what the others have suggested, post this story to any Usenet newsgroups that seems appropriate. Misc.legal comes to mind right off the top of my head. Perhaps you'll be able to scare up someone willing to represent you pro bono at least while the U.S. Attorney is mulling this over. At the least, you'll have gotten much more exposure.

Put on Usenet (4.00 / 1) (#25)
by John Jorsett on Tue Jul 18, 2000 at 07:11:57 PM EST

Post this to Usenet. There are a couple of San Diego-specific groups, sdnet.general and sdnet.misc, as well as a few Usenet groups like alt.legal, misc.legal, and misc.legal.computing that would be appropriate. The more widespread your exposure, the better chances you have of finding a lawyer or group to represent you for free.

All hardware seized... (3.00 / 1) (#27)
by fvw on Tue Jul 18, 2000 at 07:35:27 PM EST

This kind of thing always makes me wonder: Why do they always take all the hardware? Are we supposed to believe that the people trying to prosecute you don't know the difference between a harddrive and a monitor? I definately hope not... It seems to me that taking anything but harddrives, cdroms, dvds and other media is merely an attempt to do damage to the persons business/hobby, not to actually get any evidence.

ok, lemme be the devil's advocate here ... (4.75 / 4) (#33)
by legLess on Tue Jul 18, 2000 at 11:53:23 PM EST

First off, I'm very sympathetic to Farl here. Having a herd of feds in your house must have been a nightmare. I'd consider it a victory if I didn't wet my pants ;) And don't take this is a flame, because it's not - it's an attempt to start a discussion.

Frankly, however, this whole story smells like a big pile of bullshit to me.

You said, "As for the FBI acting as the watchdog of some poor little font company (and YES! this is about FONTS! of all things)..."

It's incredibly difficult to create a good typeface from scratch, electronically or manually. There are tens of thousands of fonts in existence and most of them are crap. But some are beautiful, and truly enhance your reading experience. In many very important ways it's an art form. Think of Coca-Cola, the most valuable brand in the world. That "Coca-Cola" logo is part of their success - it's their identity - and you'd recognize that typeface anywhere on anything.

Dude: known to you, your server hosted unlicensed copies of commercial fonts for download by 3,000 people. What could possibly convince you that this isn't enabling theft?

I know people who do art for a living. If someone came into Kristen's gallery and started taking photos off the walls, or sculpture of the shelves, she'd be justifiably outraged. She worked hard to create that art, and she's willing to part with it, but only for a price. It's valuable to her. It's what she does. Do you think it's reasonable for an artist, or anyone with unique creative talents, to want to be paid for her work?

I think it is. I think that my skills are valuable to myself and others, and I expect to be compensated fairly for excercising them. I support the rights of all other persons to own their own unique works and to have complete freedom to set the terms under which they will part with those works (corporations "owning" work created by their employees is another, more sordid, debate).

So you also said that a font designer asked you to remove fonts from your server, and you complied. That was polite of him to ask nicely, and very good of you to comply. But you know what? He's not obligated by law or custom to ask you. He's perfectly within his rights to ask the government to enforce it's laws. If someone were distributing (or owned the means of distribution for) copyrighted works of mine, the revenue from which was putting bread on my table, I might not ask nicely. I might be pissed. I might call the FBI and bust his ass (copyright is a Federal law, after all, and that's what the FBI ~supposedly~ does: enforce Federal law). (I would certainly not do this; I can't imagine hating anyone enough to sic the FBI on him).

Your "legal agreement" is meaningless, of course. My rights cannot be legally violated just because you and someone else form an agreement. And some things cannot be agreed away. Jack Kevorkian found that out the hard way when he killed someone who asked, even begged, to be killed. The government is notoriously unsympathetic to such agreements. A 12-year-old cannot legally agree to have sexual relations with a 20-year-old. Etc.

But finally, whether or not the FBI locks you up forever or not (I sincerely hope not; realistically, it's unlikely that any of these companies lost significant revenues due to your actions), the bottom line here is not legal, it's moral. Again, do you think it's reasonable for an artist, or anyone with unique creative talents, to want to be paid for her work?

If you say "No" then I don't consider you a reasonable person, and we can end the debate right here.

If you say "Yes" and really believe it, then please tell me how this jives with your actions. I see a huge disconnection. If you really believed that, why were you not vigilant about removing potentially illegal software from your system? This is analogous to putting up a database of credit card numbers, then offering to remove a number if the legitimate owner asks. How's he even going to find out about it, never mind ask?

As an aside, I'm fully aware of some of the scary repercussions of this. Do we want online service providers to be held legally liable for their content? Can you sue E-Bay or Geocities because one of their users posts something (potentially) illegal? What about individuals operating warez servers for hundreds/thousands of people (no accusations - really - just an example)? What about for 5 friends? What about for 1 close friend?

You see - it's hard to draw the line. I'm not attempting to draw the line. But I do think that you're stepping farther over it than you like to admit, Farl.

legLess
--
FuzzyMan45: Stupidity as a weapon of mass destruction. Great idea, but how would you weaponize it? KWillets: Television
I think you're going to go to jail... (2.00 / 4) (#34)
by Anonymous Hero on Wed Jul 19, 2000 at 12:26:30 AM EST

I think you're going to go to jail. You have clearly violated the copyright of a whole bunch of people, and it's not going to look good when you get to court. You better do everything you can to get a lawyer. Otherwise, I hope you don't have any plans for the next five to ten years.

Criminal copyright infringement (5.00 / 6) (#39)
by dhartung on Wed Jul 19, 2000 at 02:37:02 AM EST

You weren't entirely clear in your message above, but it looks to me like you are under investigation for criminal copyright infringement [US Code Title 17 Chapter 5]. Especially note Sec. 506 (criminal offenses) and 509 (seizure and forfeiture).

(There should have been a subpoena, and a search warrant, by now. Do you have copies?)

The potential penalties you're facing are defined in Title 18 Sec. 2319 of the Federal criminal code. If there were more than 10 specific fonts or software packages, the total value of the software exceeded $2500, and this is a first offense, you could be sentenced to prison for up to five years (or three if you can prove your service wasn't commercial). [That this is hardly different from what the average Napster user does is unfortunately irrelevant. The law doesn't recognize "but everyone else is doing it" as a defense.]

There are no alternative fines -- it's complete innocence, or jail time. [Note also that even if you avoid a criminal conviction, the companies may still sue you for damages under civil copyright law.]

You may think you can't afford a lawyer. In fact, you cannot afford NOT to have a lawyer.

You will need a lawyer who understands copyright law (and alas those are more expensive) as well as criminal law and federal procedure. In particular, make sure your lawyer knows and understands the Digital Millennium Copyright Act of 1999, which outlines (Title II) limitations on liability for infringement by ISPs and other online providers like website owners.

It may be that you will have to educate many people (your lawyer, for starters; the US Attorney; and the FBI) on the extent to which running Hotline makes you a "service provider" rather than an end user.

In particular, note the following paragraph [I hope I took this from the enrolled bill and not an amended version -- the Thomas search engine can be frustrating]:

`(c) INFORMATION RESIDING ON SYSTEMS OR NETWORKS AT DIRECTION OF USERS- 

`(1) IN GENERAL- A service provider shall not be liable for monetary relief, or, except as provided in 
subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the 
storage at the direction of a user of material that resides on a system or network controlled or 
operated by or for the service provider, if the service provider--

`(A)(i) does not have actual knowledge that the material or an activity using the material on the system 
or network is infringing;

`(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which 
infringing activity is apparent; or

`(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;

`(B) does not receive a financial benefit directly attributable to the infringing activity, in a 
case in which the service provider has the right and ability to control such activity; and

`(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously 
to remove, or disable access to, the material that is claimed to be infringing or to be the subject 
of infringing activity.'

Unfortunately, the above limitation of liability has its own limitation.

'(2) DESIGNATED AGENT- The limitations on liability established in this subsection apply to a 
service provider only if the service provider has designated an agent to receive notifications of 
claimed infringement described in paragraph (3), by making available through its service, including on 
its website in a location accessible to the public, and by providing to the Copyright Office, substantially 
the following information:

`(A) the name, address, phone number, and electronic mail address of the agent.

`(B) other contact information which the Register of Copyrights may deem appropriate....'

In other words, you didn't follow the new rules of the DMCA, didn't designate an agent, and by so acting you may have opened yourself up to a tremendous amount of liability.

It may be that the US Attorney will be receptive to a plea bargain, where you request immunity in return for identifying the users of the system who were uploading the software. GET A LAWYER NOW, before you are indicted or charged. Your lawyer will know how to get favorable information out of the prosecutor's office without further jeopardizing you in any way.

Good luck -- unfortunately, you're going to need it.


-- Before the Harper's Index: the Harper's Hash Table
Fuck Slashdot (1.60 / 23) (#43)
by Anonymous Hero on Wed Jul 19, 2000 at 03:32:46 AM EST

   I'm seeing a lot of comments here about how Slashdot could help this guy if they'd just condescend to post his story.

   Wake up! They've been bought. Just as Slashdot reached the point where they got listened to, where they became a real voice, they got bought out by some lame-ass IPO stock selling, no useful product selling, company. So fuck it. Dream on, people , it's not going to help.

   Yes, if they bust Farl they've busted all of us. It means that you can't go and run a board without risking a long ass time in jail, being raped by some big, murderous HIV-infected nigger. Yes, I said nigger. Can anybody here honestly say they like niggers? I don't mean blacks, I mean fucking dumb-as-a-box-of-rocks, kill-you-for-$5, niggers. Don't like my language? It's the fucking truth. Sorry, Farl, but if I was you I'd be heading out of the country. Maybe Israel, they've gotta take me, for no special reason but my ancestry.

   You can't run a board without being a fucking corporation. Look at fucking Napster. Do any of you honestly think that any Napster people are every going to see the inside of a cell, no matter what happens? Yeah fucking right. Gotta be a corporation, gotta sell stock. Don't do that, you get fucked.

   Oh, but please Big Daddy Slashdot, oh great Alpha Male Shouting At The Head Of The Herd, save our asses.

   Fucking retards. Why do you expect fucking Slashdot to save you? You want to help Farl, you better get together on your own, forget Slashdot, do it yourselves. I'm here posting. How many people just skim on by and don't? I wrote a letter to ralph@philsfonts.com. That ain't much, how many people even did that? Not many of you, I'll guess. PS, learn how to send email without being tracked so you don't end up like your pal Farl. It's not that hard. I'll leave it up to your imagination.

   Fuck Slashdot




Unfortunately.... (4.33 / 3) (#44)
by tom0 on Wed Jul 19, 2000 at 04:22:14 AM EST

I think you're in a very bad spot, and I honestly don't understand how you did not see this coming. If I understand correctly, you *knew* that anyone could visit your site and download copyrighted materials. In a court, this will be easily put in the most negative light possible by a prosecutor: "With a wink and a nudge, Farl allowed his users to make unauthorized copies, with the pretense that it would all work on the honor system...". I mean, when I found that a machine in my place of work had writeable ftp directory and it contained "backups" of some software, I had a pretty good idea of the type of person who put it there, and why. People banged on that ftp directory for quite a while after it was found and removed.

I would like to believe that your intentions were perfectly honerable, but if you were caught leaving a store with a bunch of merchandise stuffed down your pants, and no reciept, well, it'd look kinda fishy. I think this is a reasonable analogy to your situation.

I don't really doubt that you had the best intentions, and I don't necessarily agree that the laws are "right" here.... but the facts and laws being what they are, I agree with a previous poster who said you can't afford not to have a lawyer. I hope one of the EFF, ACLU or similar organizations can help you out.

That said, I think you'd have a better chance if you had been requiring people to actually upload things before they could ever download them... Perhaps a scheme like MP3.com was using ("prove" your have the CD and you can pull the mp3 back from anywhere), but then again, didn't they lose that case? (or did the judge just issue a preliminary injunction?) I suppose a record of promptly removing things when asked to can't hurt, but they guy who walked out of 7-11 with a bag of Fritos down his pants can't just say "but if the clerk just asked for it back..." and expect to get off, either. Remember, in a lot of ways, the law treats "software" (yes, even fonts) similarly to physical property.

Good luck to you, and when the dust settles and you put up a new site, why not recommend a good tape drive?

You'd better fight harder (4.50 / 2) (#49)
by Anonymous Hero on Wed Jul 19, 2000 at 08:05:44 AM EST

> I ran a very large, very busy server

Which one ?

> Émigré, House Industries, Phil's Fonts, and Art Parts

Well, man. It is the internet here. Give us their url. Nobody cares of their name

If you get to slashdot, you'd better have their url in the *submission*. In that case, they'll get their server down and mailboxes filled within a few minutes. You can bet that it will do more good than bad to you.

You are on very shaky legal grounds (read: I beleive you probably knew that people 'shared' fonts on your server), but it does not matter. Fight back. Harder. Who are they ? Where are they ? Who is their customers ? Is any of those company on the road to an IPO ? Do their PR matters ? What are their products, so people that have some unused ones can send them back as a support on your case. Who own those companies. Are they traded ? What is their ticket ?

A 5 second research on emigre.com:



> What is usually overlooked though is the fact that
> we have invested as much time in the business side
> of Emigre as we have in the creative side. Here I
> should mention Tim Starback, the third and least
> known Emigre member, who has been instrumental in
> streamlining our business and setting up our on-
> line sales system which allows customers to buy and
> download fonts 24 hours a day and 7 days a week.
> Without Tim Starback and without our personal
> involvement in licensing contracts, distribution
> agreements, legal matters, accounting, etc., Emigre
> would simply not exist. Fact of the matter is, we
> consider ourselves as much business people as we
> consider ourselves designers.

If 'wanted you to go to jail and lose all your money and computer' hurt their bottom line, they'll probably chage their mind.

*And* get yourself a lawyer.

Cheers,

--fred

PS: And don't write things like: "The problems started when 4 companies decided to pursue legal action against me, rather than just contact me directly". I have _hard_ time to beleive that those 4 competitors decided to talk between them without contacting you beforehand. _If_ one sued, and the 3 other followed, it may make sense to me. But fourth at a time, out of nothing ? Mmmmmm.




Maybe Steve Jackson Games (4.00 / 2) (#57)
by Anonymous Hero on Wed Jul 19, 2000 at 02:51:34 PM EST

Steve Jackson Games had something similiar happen to them once that almost put them out of business. They were fortunate to get a decent lawyer, sue back, and get a federal judge to put the smack-down on the Secret Service for behaving illegally.

They have the whole saga posted on their web site.

FWIW, Farl, you may want to contact Steve Jackson Himself. He's a pretty cool guy - maybe he knows some attourneys who can help you out.

If you have a server with users exchanging email with each other, it seems the FBI might have already exceeded the same law that bailed out SJGames.



Warez (2.33 / 3) (#59)
by WeeMadArthur on Wed Jul 19, 2000 at 03:18:54 PM EST

This is what we call a warez server. Most servers on hotline have an agreement that says "This site is for backups only, if you do not own the software you cannot download it." Well there is no enforcement of this agreement. You can usually go click some banners to find passwords and then download all you want.

The guy had commercial software on his server. Any member of the server could download any software on the server. It was a warez server whether he likes it or not.

I don't know if raiding the guy's house and taking his computers was the proper action but he definately is guilty of copyright infringement.

Andrew

Just wondering here ... (none / 0) (#64)
by Anonymous Hero on Wed Jul 19, 2000 at 05:17:31 PM EST

Hi there Well, I don't like the thought of the FBI busting in on me and nicking all my gear, so sympathies there. But I'm wondering why you decided to wait 70 days before looking for information! If this happened to me, I'd be off the the library, a friend's place, or wherever, to surf around looking for info and help. Why so long?

Try to move on (4.33 / 3) (#66)
by gbnewby on Wed Jul 19, 2000 at 06:20:12 PM EST

You're received some very useful comments - I hope you're reading them! Here's my short contribution:

My main message is: federal prosecutors always win. If you end up in court, odds are about 20 to 1 that you will lose. So, your goal - if you end up in court - should be to get a plea bargain as early as possible.

Another message: Contrary to what some others have advised, I believe you may be exempt from prosecution under the ISP loopholes of federal legislation. These loopholes are part of the Digital MIllennium Copyright Act (available anywhere, like the EFF's site). They enable ISPs like AOL to be exempt from prosecution for actions of their users. From what you've told us, you should have a fairly good case that you were acting as a legitimate and responsible ISP, not a pirate.

Final message: If you haven't heard much in 70 days, you might not be hearing at all. There are many many cases where the FBI has confiscated equipment and not pressed charges. I agree with others that you really, desparately need legal advice - most lawyers will give you a free or cheap initial consultation, and several of these consultations will help you to understand your options better. Your regional Bar Association is in the yellow pages: call them for a referral. However, if nothing has happened in 70 days, then perhaps you should (after getting legal advice) GET ON WITH YOUR LIFE. Forget about justice: there is none. Your best hope, I think, is that they forget all about you.

Good luck.

Get a lawyer this way... (none / 0) (#67)
by Anonymous Hero on Wed Jul 19, 2000 at 08:42:49 PM EST

Hit up the eff or aclu to see if they will back you for a lawyer. Or failing that you might be able to get someone to represent you pro-bono. Try calling up law schools that might be in your area, lots of those students _are_ knowledgable, though not very experienced. Its better than walking into court cold. Another idea might be talking a lawyer into taking your case on contingency. Best of luck, and once again this is an example of the only people getting rich are the lawyers.

This is ridiculous. (none / 0) (#68)
by Anonymous Hero on Thu Jul 20, 2000 at 12:01:54 AM EST

There is clearly a disclaimer - a click-through agreement that disclaims liability by the site owner for the content on the site.

This agreement is as valid as the click-through agreements governing the export of strong cryptographic products from the US. (when this was illegal e.g 128 bit Netscape)

If i lied when i say 'yeah i'm a US citizen' when i downloaded this software, surely this means that Netscape knowingly supplied this software to people outside the US, and as such has violated US federal law, and should be prosecuted for munitions dealing. Same with Microsoft, Sun and probly a while lot of other hi-tech companies.

I would say the FBI will back right the fuck down if challenged in court, since this clearly falls under the DMCA definition of an ISP, as well as setting a precedent that will make doing legitimate business on the internet practically impossible within the US.

They probly just expect oyu to do nothing, to forget about your hardware and get on with your life.

I would certainly suggest you get a lawyer though, but IMHO, and IANAL, you were clearly acting within the law.

I would produce as much documentation as you can on how other ISPs and hi-tech companies handle the distribution of copyrighted works - i.e. the MS Kerberos licensing agreement on the internet.

Surely they can't accuse you of failing to act in a responsible manner as an ISP if you are taking as many or more provisions to ensure the legitimacy of your service than the largest players in the industry.

Then i'd get your lawyer to challenge the FBI to download anything illegal off your server without making a legally binding agreement not to do so.

Then i'd get your lawyer to sue those miscreant fucks for the emotional distress they have caused you etc. etc... isn't that the way the US legal system works?





Try this.. (none / 0) (#72)
by Anonymous Hero on Thu Jul 20, 2000 at 03:31:23 AM EST

.. Contact Steve Jackson games, the makers of GURPS, and ask them what they did when the secret service took there computers. THere situation was different, but they did win, and probably can at least tell you what agencies they used to help them win.

YOU DON'T NEED A LAWYER... (1.00 / 1) (#75)
by Anonymous Hero on Thu Jul 20, 2000 at 07:41:33 AM EST

...YOU NEED AN AIRPLANE TICKET!!!

If they haven't touched you for 70 days, it doesn't mean that they will continue to leave you on the streets. You haven't been arraigned or indicted yet.

RUN!!!

If you leave the country, the FBI will forget about you. It's not worth their time to spend millions discovering where you ran to, then chasing you down, getting the host country to arrest you, and arranging for extradition.

I mean, CHRIST, you're in San Diego, right? Go to MEXICO, like yesterday!!!



My advice: Play it cool. (3.00 / 2) (#80)
by Anonymous Hero on Thu Jul 20, 2000 at 12:26:49 PM EST

My advice: Play it cool. Remember that our government forces are not one big cohesive group, but rather a large number of individualists who lack the technical skill to make it in the private sector, and make up for it with excessive office politics.

This isn't what you want to hear right now, I know. I've been in "interesting" legal situations before, and I know what you really want to do is to kick their collective ass.

My advice is to reconsider that attitude. Do the math. Right now you are out, what, $3000 in hardware, software, and whatever... Litigation will run you what, 6 figures? More? Not to mention the risk of doing time in jail...

Did you keep off-site backups? (If not, then what did you think off-site backups were for?) For a couple of grand, you should be able to get back in business. (Preferably WITHOUT the download section, as a second offense will get you *MUCH* more attention than you really want.)

Right now, the FBI & US Attorney are probably sufficiently overworked that your case could very well fall in between the cracks. A *LOT* of folks who are raided merely end up losing their hardware, with no charges ever being filed. It's been an unofficial policy in this country for some time now... They were even doing this back in my day, back in the early 80's...

I am not an attorney, so my other advice is that you find yourself a *GOOD* attorney *NOW*. Buy an hour of his time, explain your case, and obtain his advice. More importantly, decide which attorney you will use *NOW*. Then, later on, *IF* our government does decide to prosecute, you can call him or her up. (Remember that bit about one phone call. It sucks trying to find an attorney with just one phone call.)

Also, remember that if it does go to court, even if you can afford a 6 or 7 figure legal defense, you will most likely lose. You will be branded a "hacker", and all hackers are considered evil by all juries, thanks to our wonderful make-a-quick-buck press.

Consider your next move carefully. To my knowledge, click-through legal agreements have yet to be tested (read: hold up) in court. And did you even have a lawyer write your click-through legal agreement?



More Responses (4.00 / 1) (#81)
by farl on Thu Jul 20, 2000 at 12:54:27 PM EST

In repsonse to some of the newer comments on here:

Agreement: yes it is just as legal binding in theory as any software license. Also, it clearly did not allow any form of legal entities to enter the server. So if the FBI did enter it before they seized my system, that is a problem i can use.

Money for Server: As I've said, I am poor. It took me 2 years to save up enough money to buy my computer, and it is worth well over $3000.00 actually. I do not have that kind of money to be able to do that again for another two years at least. As for running the server, it only cost $50 a month for my cable modem, which can support easily the 150 connections at reasonable speeds. So don't think i had some form of fancy T1 or anything expensive like that. Cable modems in san diego are REALLY good, especially in the area that I live in.

Uploaders: yes. I have logs. i keep logs of EVERY upload that comes into my system, and the FBI has these logs. So I won't even have to point fingers, and I can show where every piece of software came from.

I have contacted the EFF and ACLU already, and am waiting on a reply from them, as well as many local and statewide organisations that might be able to help me. All the exposure and information I can get can only help me.

thank you for your comments and keep them coming please.

Farl


Farl
k5@sketchwork.com
www.sketchwork.com
Looks like you got caught and now your trying to w (1.00 / 1) (#85)
by Anonymous Hero on Thu Jul 20, 2000 at 02:26:29 PM EST

"it was the busiest non-warez site" If you allowed people to post copyrighted software and that software can be downloaded, it's warez! I suggest that you strike a plea bargin or you'll end up like Kevin.

Stop Bulls**ting everyone.. (none / 0) (#87)
by chazo on Thu Jul 20, 2000 at 05:23:31 PM EST

This idea of "saving space" by having once central directory available to everyone is so much bunk. You know why you did that and it was not to save space. Had you wanted to provide a storage service for people and wanted to avoid duplication, you could have kept a single copy of the file and indicated who had uploaded it. I don't think anyone would have a problem with this. It's basically a form of compression and does not allow pirating. Clearly, nobody is going to use you system for personal file storage unless they don't care if (or are encouraging) others to access the files. You would be the first one to complain that some company that did you wrong was hiding behind a sham legal agreement, but that's what you are doing. Did you in any way try to ensure that people did not download files they did not upload themselves? It would have been easy to check. Did you look at your logs to see if files were being downloaded by large groups of users? Ignorance of the use of your system will never hold up in court. Someone characterized it as "nudge, nudge, wink, wink". It won't fly.

Comment from Emigre (5.00 / 1) (#95)
by Anonymous Hero on Tue Jul 25, 2000 at 06:20:00 PM EST

For the most part Farl is receiving good feedback about his problem but in order to generate support for his cause I believe he is misleading people. The first part I'd like to correct is that I never said the following: "Tim Starback of Émigré, said when I asked him what they would like me to do, that he wanted me to go to jail and lose all my money and computer." I did inform him that his actions were illegal and violated the DMCA. He claimed what he was doing was "perfectly legal" and challenged us to prove him wrong. You should also be aware of the sequence of events: 1. We discovered Farl's server with over $5,000 of our software free for the download. 2. We contacted the ISP. (we had no way to contact the administrator) 3. ISP verified the copyright violations and shut down his account. 4. We phoned Farl to verify address for attorney. 5. A month latter the ISP gave Farl access again and his server was back up (this time most of our fonts were gone but he still had thousands of dollars of other copyrighted software.) 6. We referred the case to the FBI through the SIIA. 7. Months later the FBI seized Farl's computer. Even after being shut down by his ISP and a phone call from us he still maintained thousands of dollars of copyrighted software on his server. Sincerely, Tim Starback tstarback@emigre.com

In response to Tim Starback (none / 0) (#96)
by farl on Wed Sep 20, 2000 at 04:57:22 PM EST

Well some of what he says is true. And some of it is not. The parts about the order of events is correct, except the details are wrong.

Yes, my ISP did shut down my account, but they never VERIFIED that i had done anything wrong, and in fact, they apologized to me afterwards for shutting it down WITHOUT verification of any wrongdoing.

Yes, Tim did say that stuff he says he didn't.

No, nothing was free for the download. Not that you paid for download either, but there are such things as service agreements, and they are just as valid as copyright agreements.

No. All of his fonts were gone. I am not entirely silly.

No. He contacted my ISP to try strongarm me. My contact information was posted in MULTIPLE locations through the server's file system and newsboards.

I really dislike people who can't even tell the truth about simple things. Tim is one of the worst of this type that i have met.

Farl
farl@sketchwork.com


Farl
k5@sketchwork.com
www.sketchwork.com
Copyright Infringement and the FBI | 96 comments (95 topical, 1 editorial, 0 hidden)
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