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1997).
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First, republishing the hyperlink did not make the Stratfor file available to others. As
explained above, the hyperlink was a text string that conveyed a location where the Stratfor
file could be found, and nothing more. Second, the conveyance of information regarding the
location of an unrestricted public website is not a crime under §1028(a)(2). To hold otherwise
would stretch the statute far beyond the reach that Congress intended. See POINTS I.B-C, supra.
Third, even if the Court were to construe the term transfer to encompass causing
[data] to be made available to other persons online, the indictment still fails because the Stratfor
file (and its location) was already available to [all] others by virtue of their being in the public
domain at the time of the charged conduct. See, STMT FACTS, supra. In addition, other persons
had already published and pasted the hyperlink that Mr. Brown later allegedly copied and pasted.
Id. The Stratfor file was a readily available publication, indexed and accessible by anyone in the
public. Its location was pointed to (albeit indirectly) by media outlets across the globe.
As the Supreme Court discussed in Reno v. American Civil Liberties Union:
Access to most Web pages is freely available, but some allow
access only to those who have purchased the right from a
commercial provider. The Web is thus comparable, from the
readers' viewpoint, to both a vast library including millions of
readily available and indexed publications and a sprawling mall
offering goods and services.
Reno v. American Civil Liberties Union, 5121 U.S. 844, 852 3 (1997). By this analogy, Mr.
Brown republished a card catalogue number to a book at the public library. Moreover, it was a
card catalogue number everyone already had access to.
Fourth, the allegation that Mr. Brown caused authentication features to be made
available to other persons online does not allege a sufficient actus reus to fit §1028(a)(2). Count
1 is a substantive charge and must allege a completed transfer of an authentication feature. See
offense definition, BLACK'S LAW DICTIONARY (9th ed. 2009), ( A crime that is complete in itself
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and is not dependent on another crime for one of its elements. )(emphasis added)30 Here, the
government fails to allege that any person completed a transfer of authentication features, let
alone Mr. Brown. As such, Count 1 (and Counts 3 12) must be dismissed.
F. A dismissal of Count 1 (and Counts 3 12) would be in line with this Court s ruling
in Live Nation Motor Sports, Inc.
In Live Nation, this Court held that a webpage containing an embedded link enabling the
web-surfer to listen to copyrighted audio on the webpage could qualify as a public display or
performance in violation of the Copyright Act. Live Nation Motor Sports, Inc. v. Davis, 2006
WL 3616983 *4 (N.D.Tx. 2006) (Lindsay).31 The Court relied on National Football League v.
PrimeTime 24 Joint Venture, a Second Circuit case that has held that interpretation of the
Copyright Act is to hold that a public performance or display includes each step in the process by
which a protected work wends its way to its audience. Id. (citing to National Football League).
First, Live Nation is a copyright case, and any holding therein should be limited to
interpretation of the Copyright Act. Moreover, the rules of statutory construction did not require
the strict construction mandated in criminal cases.
Second, the conduct complained of in Live Nation is materially distinguishable. In
LiveNation the conduct is known as inline linking where an infringing website acts as a
portal or frame for infringed content sourced at another website. The inline linking on the
30
Cf. Model Penal Code §5.01(b) (Official Draft, 1985) (if a particular result is an element of the
crime, a person is guilty of attempt when they do or omit to do anything with the purpose if
causing that result).
31
The plaintiff in the case was SFX, a company that organized sport-motorcycling and
Supercross events. SFX broadcast live coverage of these events over the internet free of
charge, though the Web casts were accompanied by a number of sponsoring advertisements. The
defendant was owner and operator of a super cross enthusiast site, and routinely linked directly
to these webcasts, completely bypassing the ads and other content presented on the SFX website.
The court granted a preliminary injunction against Davis, noting that his direct linking harmed
SFX financially, and that SFX would likely prevail in its claims of copyright infringement.
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infringer s site allowed the web-surfer to display (or listen to) protected material without
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