U.S. Ninth Circuit: March 2013 News
U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Circuit March 2013 News

The Ninth giveth, and the Ninth taketh away. Seven days after releasing the Veoh decision, which buttressed the DMCA Safe Harbor protections by extending protection to providers that know that they host copyrightable material and that their services could be used for infringement, the same three judges trimmed away DMCA protections in the isoHunt case.

In both Veoh and isoHunt, a company made money off of advertising on a site full of user-submitted content, much of which infringed upon others' copyrights.

Before you can understand the latest file-sharing case, it might help to understand how Bittorrent works. Let's say you want to download a pirated movie (or a legitimate copy of free software). You go to an indexing site, like isoHunt, search for the file, and download the .torrent key. This key contains information on the file size, provides links to "trackers," and describes the number of pieces that make up the file. A separate program uses this file to locate fellow users and transfer files between them.

Trackers are like air traffic controllers. They coordinate users' links to each other, as all transfers of the actual movie are done peer-to-peer. Neither the trackers nor the indexing sites actually host any pirated content.

Here's what we know about the Hamid Hayat case. Hayat isn't the sharpest tool in the shed. As we covered in our discussions of the majority decision and the extremely passionate dissent, he barely has a seventh-grade education. Some strange man shows up to Lodi, California (for those unfamiliar, think 'Deliverance' with more sunshine) and becomes his best friend. That "friend" encourages Hayat's pro-Taliban viewpoints and his boasted plans to attend a training camp - going so far as to chide him for not attending. That "friend" was a paid FBI informant.

Despite that informant's lack of credibility (he got the paid gig after falsely claiming to see Osama Bin Laden's second-in-command and other top terrorists at a Lodi mosque), a juror who made some very questionable (and some would say, racist) statements during and after trial, and an expert witness who was fully full of feces, Hayat was convicted. A panel of the Ninth Circuit affirmed that conviction last week. Lest you think we're the only ones confused by the case, we surveyed a few others thoughts.

Last week, the Ninth Circuit upheld the conviction of Hamid Hayat, a man with a seventh-grade education who confessed to attending a terrorist training camp after intense interrogation. His statements were corroborated by the testimony of a paid informant, with credibility issues, and the testimony of an expert who stated that the prayer in Hayat’s wallet would only be carried by a “jihadist.”

He was convicted of providing material support to terrorists, or as the government put it, having a “jihadi heart” and a “jihadi mind.” The majority upheld the conviction, while a passionate Judge Tashima issued a twenty-five page dissent.

This should have been a fascinating case. It has support of terrorism, juror bias, FBI informants, and the government's strategy of using preemptive prosecution to catch terrorists before they terrorize. Do we punish people for possibly, maybe, thinking somewhat about someday terrorizing? Or, as with most crimes, do we wait for a conspiracy, attempt, or actual completion? It's constitutional rights versus national security, something we can all be intrigued by.

The dissent addressed this issue passionately, for 25 pages. The majority talked about grammar. Yay!

This is an 83-page opinion, so we'll give the super-abridged majority today, and return with the dissent later this week.

9th Circuit Makes DMCA Safe Harbor a Little Bit Safer

Veoh Networks may no longer be in business, but its name will live on in the annals of intellectual property law for solidifying Digital Millennium Copyright Act (DMCA) safe harbor protections for the online community.

Thursday, the Ninth Circuit Court of Appeals ruled in Veoh’s favor once again in a multi-year battle between the defunct video sharing site and Universal Music Group (UMG), according to The Hollywood Reporter. In doing so, the appellate court found that “red flags” of infringement weren’t sufficient to void the safe harbor.

Bobby Joe Knight served 20 years in a California prison for sexual assault. Though his sentence ended in 2004, he's still behind bars.

Why? California's Sexually Violent Predator Act (SVPA), which allows the state to initiate civil proceedings to hold a certain sub-species of violent sexual predators in a state hospital if the state proves "beyond a reasonable doubt" that the defendant is likely to "engage in sexually violent behavior" due to a mental disorder.

The existing Border Search Exception, which is quite handy for digging through terrorists' and drug smugglers' luggage, doesn't exactly fit with the realities of modern life. Whereas we once could dig though someone's belongings in an hour or two, the Cotterman case presented a different scenario: a convicted pedophile caught with images of himself and an underage girl after his laptop was seized at the border and examined at a laboratory 170 miles inland.

If it sounds like a tough and important case, that's because it is. So important, in fact, that we sent our best people to live-blog the oral arguments.

It’s rough being a third party in America. When was the last time a third party was truly relevant? Was it Teddy Roosevelt’s Bull Moose Party in the early 20th century? Our country has been a dual-party system by default for so long that it is nearly impossible for a third party to break into the popular conscience, or into office for that matter.

It shouldn’t be that way, however. It should be as simple as making stump speeches, getting signatures, and running for office on ideas. Unfortunately, third party candidates and independents often run up against bigger budgets, more volunteers, and in this case, state regulations.

Last November, California voters overwhelmingly approved Proposition 35, also known as the CASE Act. Nearly 81 percent of voters supported the initiative.

Proposition 35 placed new restrictions on those who traffic in humans, either for labor or for the sex trade. One of those restrictions led to an injunction by the district court, and could lead to the Ninth Circuit.

What's the issue? Free speech, naturally.