Censorship

Analysis of “Seth Abrahams v. Hard Drive Productions Inc., and Does 1-50, Case # 3:12-cv-01006″

I hope you all have had a chance to read over the complaint (Seth Abrahams v. Hard Drive Productions Inc., and Does 1-50, Case # 3:12-cv-01006 –  Abrahams_v_HDP_01006) and digest it.  There may be a quiz later, so pay attention.  Sorry if this is a bit long, but I promise the read is a good one unless you are on the Troll side

 

Players

  • Seth Abrahams, represented by Aaron McClellan and Steven Yuen, MURPHY, PEARSON, BRADLEY & FEENEY, San Francisco, CA.
  • Hard Drive Productions (HDP) Inc., represented by Brett Gibbs, Prenda Law (Formerly Steele|Hansmeier PLLC).
  • Does 1-50 – This is the unusual bit in the complaint, as they are listed as defendants.  Hopefully we will hear from some of our attorney friends on this aspect of the complaint.

Jurisdiction

McClellan and Yuen (M&Y) start off with stating that jurisdiction in the Northern District of CA is valid because HDP/Prenda voluntarily submitted itself to this court when it filed cases 4:11-cv-01567 (HDP v. Does 1-118) and 3:11-cv-05634 (HDP v. John Doe/Seth Abraham)Archive of 4:11-cv-01567  Archive of 3:11-cv05634

Due to Hard Drive’s filing of prior action number C 11-01567 LB and its present action  number C 11-05634 PJH, its threats and notices of lawsuits and settlement demands to plaintiff and its conduct within this district, it has created an actual and continuing controversy within the court’s jurisdiction such that the court needs to declare the rights and other legal relations of plaintiff who is seeking such declarations from the court.

Failure to Disclose Another Party has Financial Interest

M&Y inform the court when HDP/Prenda filed the initial case on 31 March 2011, they violated Civil L.R. 3.16(b) by purposely not telling the court that another party had a significant financial interest in the filed case.  M&Y inform the court that as of 28 Jan 2011, Paul Pilcher “owns more than 20% of any class of shares issued by Hard Drive, or having more than a 20% beneficial interest in Hard Drive,..”  – http://starpas.azcc.gov/scripts/cgiip.exe/WService=wsbroker1/corp-detail.p

Improper Joinder to Defraud the Court

M&Y claim that HDP/Prenda improperly joined the initial 118 Doe defendants to avoid paying the $350 filing fee for 118 separate cases.  HDP\Prenda has essentially defrauded the court (and US tax payer) by getting benefits and services without paying for them.

No Statutory Damages

Here is a good one.  HDP published the movie “Amateur Allure – Samantha Saint” on 4 March 2011.  The alleged copyright infringement of this movie occurred on 21 March 2011.  The movie was not registered until 18 November 2011.  The movie was registered over Eight months after first publication.  According to 17 U.S.C. section 504(c), statutory damages (That wonderful $150K figure they love to threaten Does with) and attorney fees are NOT entitled if the copyright registration occurs more than three months after first publication.

Unlicensed Private Investigator

Now here is my favorite section of the complaint.

Plaintiff is informed and believes, and thereon alleges that Hard Drive had entered into an agreement with a third party private investigator, who is unlicensed under California law but yet is required to be licensed, to log IP addresses that were allegedly transmitting Hard Drive’s work via BitTorrent.

Both complaints do not mention the exact Steele|Hansmeier/Prenda “agent,” but I will bet it is our friend Peter Hansmeier.  In the other Steele|Hansmeier/Prenda cases, he is the technician for 6881 Forensics LLC (Formerly Media Copyright Group LLC).  This is the “agent” Prenda uses for its BitTorrent monitoring.  Many States have requirements that private investigator be registered in the State.  This appears to be a violation of California Business and Professions Code sections 7520 and 7521.  The work this agent did falls under PI work – specifically a computer forensic PI.  I wouldn’t doubt Peter Hansmeier has some type of computer training (or degree), but I highly doubt he has any investigative/evidence handling/computer forensics degree or certifications.  Not to mention I doubt 6881 Forensics (or what name they are using now/then) was registered to do any work in the State.  If we find out that 6881 Forensics ISN’T a LLC, then we have multiple false statements (other Prenda cases) and it opens up Peter Hansmeier (and other “agents”) to be personally sued.

No Infringement Because the Private Investigator Seeded the Movie

M&Y make the allegation the “private investigator” with the consent of HDP seeded the movie so he could track the public IP addresses downloading/sharing the movie.

M&Y state HDP wanted the downloading/sharing of the movie to continue so they could record public IP addresses and eventually collect settlement fees by threatening a defendant with a federal law suit.  Supporting this view, M&Y claim that HDP never sent DMCA “takedown” notices to the systems downloading/sharing the movie.  If HDP did this, it would decrease the number of defendants and the possible settlement fees they would share with Prenda.

Plaintiff is informed and believes, and thereon alleges that Hard Drive knew it could make more money by allowing its work to continue to be distributed instead of shutting down the BitTorrent trackers.

Use of Threats in an Attempt to Induce Settlement

M&Y explain to the court how HDP/Prenda obtained Mr. Abrahams’ personal information from the ISP and sent him a settlement letter for $3400.  Attached to the letter was the usual Prenda “FAQ” handout, plus a “Memo of Law” stating essentially how the “Open Wireless” defense will not work.  The Memo of law is badly written and doesn’t even correctly cover the true issues surrounding these cases.  Based on all the direct and indirect threats Mr. Abrahams received from HDP/Prenda, M&Y state:

Plaintiff is informed and believes, and thereon alleges that Hard Drive’s prior action complaint along with the settlement demand letter and memo of law were designed to threaten, notify, intimidate, and to coerce plaintiff into paying the settlement demand of $3,400, especially when confronted with the statutory damages figure of$150,000.

Supporting this view is the fact that HDP/Prenda (in the complaint & settlement letters), fraudulently claimed they are entitled to statutory damages of up to $150K and attorneys fess.  As Prenda is such a knowledgeable IP law firm, it is going to be hard for a judge to believe it was a simple error on their part.  M&Y alleged that HDP/Prenda’s action are no different from the Trevor Law Groups (TLG) LLP’c conduct which led to the State of California suing TLG for ”abusive improper practices relating to unfounded and baseless Business and Professions Code section 17200 claims.”  Please comment on the TLG cases if you have knowledge – Thanks!

Failure to Inform (& Motion) the Court that the New Case was Associated with a Previous One

On 19 January 2012, HDP/Prenda closed case 4:11-cv-01567 (HDP v. Does 1-118).  On 21 November 2011, HDP/Prenda files case number 3:11-cv-05634 (HDP v. John Doe/Seth Abraham).

M&Y allege that HDP/Prenda failed to comply with Civil L.R. 3-3(c) when it filed the new single Doe defendant case (3:11-cv-05634).  Civil L.R. requires the refiling party to file a motion so the court can consider if the both cases should be related to Civil L.R. 3-12.  If both cases were determined to be related, the same judge in the first case would have also been assigned the newer one.  This saves the court time and money, as the judge already knows the background on the cases.

Plaintiff is informed and believes, and thereon alleges that Hard Drive purposefully failed to comply with Civil L.R. 3-3(c), because the previously assigned judge, the Honorable Laurel Beeler was likely to make rulings adverse to Hard Drive given its failure to prosecute the case.

More Settlement Threats

On 19 October 2011, HDP/Prenda sent another settlement letter to Mr. Abrahams, along with a letter advising to preserve all possible evidence or face “spoliation” sanctions.  Take a look at the preservation letter.  It is a cannibalization of a very old preservation letter, even mentioning preserving tape back-ups.  Prenda couldn’t even be bothered to try and find a newer one to copy.

Defamation

M&Y then inform the court that Prenda defamed Mr. Abraham, when they listed him by name on their Web site as one of their “Top 25 Pirates.”

Plaintiff is informed and believes, and thereon alleges that as late as January 11, 201 , Hard Drive represented to the public that he was one of its agents “Top 25 Pirates.” A true and correct copy of this redacted defamatory statement is attached hereto as Exhibit E at page 1. Plaintiff denies this unfounded and baseless defamatory allegation.

Improper/Unethical Tactics

M&Y state the defamation along with threats and notices of lawsuits, memo of law of plaintiff’s alleged absolute liability, and settlement demands, were designed to threaten, notify, intimidate, embarrass, shame, and to coerce plaintiff into paying the settlement demand.  On 6 Jan 2012, HDP/Prenda asked the court to grant a limited “ex parte” deposition of Mr. Abraham (Still un-named by Prenda).  M&Y alleged this was done just to make it hard for Mr. Abraham to properly defend himself, incur attorney fees, and make the option of settling more financially acceptable to him.

Hard Drive’s tactics were improper as plaintiff had notified it that: (1) he did not download the work, and (2) he did not know who downloaded the work.

Can you say “Richard Pryor Response?”  Give it to them Does!

Porn is Not Copyrightable

M&Y then go onto state HDP’s pornographic works are not copyrightable, as they do not promote the progress of science and useful art (Article I, Section 8, Clause 8 of the U.S. Constitution, known as the Copyright Clause).  I think M&Y may have a hard time with this one, but it will still require HDP/Prenda to expend time and money to defend against it.

Two Faced

M&Y states that even as HDP/Prenda tells the court that it doesn’t know if Mr. Abraham is the copyright offender, their actual position in “extra-judicial” communication (to Mr. Abrahams) is that he is liable for the alleged copyright infringement.

Prayer for Relief

M&Y make a”Prayer for Relief,” in which they ask the court to grant the following.

  • Declare that Mr. Abrahams is not guilty of copyright infringement.
  • Declare HDP’s work as not copyrightable OR strike the copyright registration of the movie.
  • Issue an order stating HDP has not taken normal mitigation steps to limit damage, such a issuing DMCA take-down notices to public IP addresses illegally downloading/sharing its works.
  • HDP is NOT granted statutory damages and attorney fees.
  • Declare that NO infringement occurred, as HDP/Prenda allowed a “Non-Californian and unlicensed private investigator” to distribute/seed the movie  OR that HDP/Prenda is guilty of the “Unclean Hands” doctrine because of its use of “honeypots” (or 3rd party services as such).
  • HDP/Prenda has unlawfully demanded settlements unsupported by law or fact.
  • Award Mr. Abrahams his costs and attorney fees.
  • Enter a judgement in favor of Mr. Abrahams, against HDP and any other named defendants.
  • Any other relief the court deems just and proper.

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Posted by plates55 - March 3, 2012 at 12:14 pm

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Jailbreaking is Not a Crime, Sign the Petition

You bought it. You own it. Tell the Copyright Office: let me install whatever software I want on my phone, tablet, or video game system.

bunnie Huang, author of Hacking the Xbox, is standing with the Electronic Frontier Foundation to defend users’ right to jailbreak. Will you sign on to bunnie’s letter to show the Copyright Office that users everywhere are demanding the right to jailbreak?[learn more]

 

Dear Ms. Pallante,

Whether it’s patching a security vulnerability or homebrewing video games and apps, people who own smart phones, tablets, and video game systems are finding inventive ways to use and improve their devices. Often users need to gain full administrative access, through a process known as “jailbreaking,” to innovate and take advantage of the device’s full potential.

But right now, jailbreaking a device can lead to legal threats. That’s a vulnerability in the law: we need you to create a “patch” so users who jailbreak devices won’t be at legal risk.

Three years ago, the Copyright Office agreed to create an exemption to the Digital Millennium Copyright Act so that folks could jailbreak their smartphones. But that exemption is about to expire. We need you to renew that exemption and expand it to cover jailbreaking gadgets with similar computation potential. These are all siblings to the PC, yet unlocking their potential as versatile and powerful computers is burdened with legal murkiness.

We need these exemptions to conduct security research on devices to help safeguard everyday users from security threats.  Furthermore, users of these products benefit from the flexibility to choose their own operating systems and run independently developed software. We need the law to catch up with how people are using technology.

Jailbreaking is helping to make technology better, more secure, and more flexible. Please defend the rights of users.

Thanks for enabling us to keep technology innovative, secure, and focused on the users.

bunnie Huang @bunniestudios

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Posted by plates55 - January 27, 2012 at 8:39 am

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Why SOPA and free knowledge are necessary.

What would you say if I told you that life is easier now than it was back in the 1970’s!  If you lived back in the 70’s you would totally agree.  Think back to 1978.  There were no cell phones, their was no internet,  the video game that I grew up with was called pong!  Wow at the time it was so cool..  Calculators cost 600.00 andand college was hard.   Really hard.   Think about writing a term paper for an english class and n ot having wikepedia or Lexus-Nexus to help you.  Instead you had was  World Book Encyclopedias that we outdated as soon as they were published.

Free knowledge is so necessary just to maintain our college graduation rates if nothing else.

I had the privledge of going to college in the late 70’s and then going back again in the 2000’s to

finally graduate, with a BS and also an MS.  It was so much easier in 2007 versus 1979.  Why?

No more all night library sessions to get that paper done.  Now it could all be researched on the internet.

While it is easier to graduate it is also in different ways harder!   Harder to cheat, which is a good thing.

All that information (free) is also available to the professors and while we all have MS Word, the professors have programs to catch plagerism.

Keep SOPA away from internet.

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Posted by plates55 - January 24, 2012 at 8:40 am

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SOPA V. Soapy: In 2012 Government and Big Business Will Understand How Powerless They Are In The Face Of Human Ingenuity

SOPA.  The Stop Online Piracy Act.

If you have a web browser open for most of the day, or you just happened to have badly misspelled soap in a Google search, you’ve come across SOPA.

 

In short, it’s bad. Cauliflower bad or (if you’re a some kind of deviant who actually likes the flavor of cream of evil vegetables) Tea Party bad.

The entertainment industry and, I suspect, some folks along the Republican side of the aisle, want the ability to block any website from view that could have possibly, maybe once, but we’re not really sure, hosted copyrighted content illegally. In principle, I get it. The entertainment companies would very much like to stop dumping millions of dollars into projects that have to actually be good in order to recoup their cost. The current state of affairs seems to be; “I create a crappy but mildly entertaining product, people get wind of the fact that it’s probably not going to be very good and therefore not worthy of their hard-earned money and they either download it illegally, or wait for it to arrive on DVD, OnDemand, or Netflix.

The simple solution, of course would be for content producers to stop churning out endless acres of crap. But that’s never going to happen. So we get SOPA; a nuclear option to stop the money from bleeding out.

But is the money bleeding out in enough quantities to warrant a nuclear option?

I really don’t think so.

The vast majority of consumers fall into what I call the baseline user class. They own at least one full computer (desktop/laptop) likely a smartphone and maybe (a very slim percentage so far but growing) a tablet of some sort.Maybe they do a bit of gaming but mostly they surf the internet, watch cat videos on YouTube, get a bit of work done and post embarrassing pictures of themselves and others on Facebook. That is the vast, vast majority of users. I’ve tried to explain to those of my friends that fall into this category how to use tools like Bittorrent to acquire free (or stolen, depending on the laws of the jurisdiction you happen to live in) content, but it mostly falls on incapable ears. Gone are the halcyon days of piracy through simple channels like Napster and Kazaa. Pirating in the modern era is much more efficient but also requires a bit more specialized knowledge and effort, two things that the baselines lack when it comes to entertainment.

When the average user thinks about digital content, it usually comes in convenient but paid for and licensed forms like iTunes, Pandora, Netflix, Hulu, or Amazon. The vast, vast majority of consumers pay for every single piece of digital content they consume. Sure, the way they’ve chosen to consume it means scaled down profits for content producer but, as Republicans and Tea Baggers love to remind everyone, the market determines value, not whatever you think something should be worth.

So why SOPA?

Power, control, censorship and a deep misunderstanding of the technological proficiency of the people who actually understand how the internet in general and piracy in particular work.

Congress believes, by virtue of the authority granted to them by those who’ve elected them, that they have power. The entertainment industry believes, by virtue of its billions of dollars in revenue, that they have power. The supporters of SOPA who aren’t tied to either of those spheres believe, by virtue of their influence over daily life on the internet (see GoDaddy) that they have power.

And they are all correct. But it is not true power, because it is utterly dependent on a combination of our tolerance and apathy, two traits which are mercifully shrinking within the populace at large.

Congress, for example, is filled with people who care not a bit for the desires of those who voted them into power. They care, almost exclusively, about pushing the agenda of their political party. They care about winning. But they can only do so if they are allowed to continue holding office, so they have to walk a tightrope between their own desires and not doing anything that the lowest common denominator of their electorate will find undesirable. Their power is derived from us and they can only exercise control over us to the extent that we allow it. At least in four year blocks.

Large service and content providers like those within the entertainment industry are subject to the same limitations. Yes, their money equates directly to power and influence. But they can only continue to exercise those advantages if we continue to give them money. Which is why the passage of SOPA is so important to them. They are trying to force us to pay for their schlock whether we care to or not and, really, it’s hard not to foresee a scenario where one of the major content providers decides that something hosted on Netflix somehow violates a copyright agreement and uses the broad powers of SOPA to blockade the legitimate services we choose to use in lieu of more expensive options. They want to dictate terms to the market. The reason that they’re being so brazen in their measures this time is, ironically, that the very same limitation that should make them think twice about so joyously biting the hands that feed them (our ability to effect a boycott of their services and thus drain them of all of their resources) is exactly the thing that we won’t exercise. Time and again (with the exception of the recent GoDaddy mass exodus) we’ve shown that when principle clashes with convenience, convenience wins. It is a frustrating flaw of the human condition.

However….

What both governments and corporations fail to understand is that individual mastery of technology within our culture has become such that, within the relatively small percentage of the population that doesn’t fall into the baseline category of users, there exist large pockets of individuals who have the power, from a keyboard, to thwart the concerted efforts of Big Business and Big Government with relative ease, especially when it comes to the field of internet censorship.

Case in point:

This morning I read this article that talks about a browser extension for Firefox called Soapy. Soapy is a tiny little script that can be downloaded and installed by anybody, into Firefox on any computer, by means of simply dragging the script file to your browser window. And its sole purpose is to change the way your browser looks up websites that have been blocked by SOPA and instantly navigate around ISP enabled blocks to allow you access to your content.

Before SOPA has even been passed, someone has found a way to render it moot. And this is just the first blow; this is just one guy, typing away from the comfort of his home office. Others will follow. It will become easier and easier for the baseline user to access tools that free them from the oppression of corporate and government interests, and that is a very good thing.

But why is it so easy?

Because the people who seek to control and censor online content don’t understand that  the internet isn’t a thing that they can contain within the laws of the land. It isn’t something that you can control. The internet is more than cables and connections and websites. It is, like Soylent Green, people.

And people, whether en masse or as individuals, will always find a way to remain free.

Even from the clutches of Sony Entertainment and the Tea Party.

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Posted by plates55 - January 13, 2012 at 10:15 am

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Wikipedia Mulls Total Blackout to Oppose SOPA

Wikipedia founder Jimmy Wales wants to blank out all pages of the online encyclopedia to oppose the pending SOPA anti-piracy bill in the US. Wales, who has asked the Wikipedia community for input on the idea, fears the bill could seriously hurt the Internet and thinks that blanking out Wikipedia will send a strong message to lawmakers.

walesLater this week, the Senate’s House Judiciary Committee will vote on the “Stop Online Piracy Act” (SOPA).

Supporters of the bill say it’s needed to safeguard the interests of rightsholders who claim their businesses are threatened by online piracy. Those opposing are worried that the unprecedented censorship tools it introduces will take out many websites on baseless or faulty claims of copyright infringement.

Wikipedia founder Jimmy Wales belongs to the latter group, and behind the scenes he is mulling plans to blank out all Wikipedia pages in protest against the pending SOPA bill. On Saturday he posted a message on his user page asking the community for input on the idea.

Wales explains that the idea of a ‘self-censorship’ protest is inspired by a campaign the Italian Wikipedia community ran earlier this year.

“A few months ago, the Italian Wikipedia community made a decision to blank all of Italian Wikipedia for a short period in order to protest a law which would infringe on their editorial independence. The Italian Parliament backed down immediately,” he writes.

“As Wikipedians may or may not be aware, a much worse law going under the misleading title of ‘Stop Online Piracy Act’ is working its way through [the Senate] on a bit of a fast track.”

“I may be attending a meeting at the White House on Monday along with executives from many other top Internet firms, and I thought this would be a good time to take a quick reading of the community feeling on this issue.”

By blanking out one of the most-visited sites on the Internet, the Wikipedia founder believes the community can send a strong message to their representatives in Washington. With billions of pageviews a month, a Wikipedia protest will definitely be noticed.

“My own view is that a community strike was very powerful and successful in Italy and could be even more powerful in this case,” Wales says.

The response from Wikipedia users to Wales’ plan has been overwhelmingly supportive.  However, several users also placed critical notes and wondered whether Wikipedia is the right platform for a political protest.

“I oppose the legislation, but that’s a political view. I don’t ever want Wikipedia to take a political view, no matter how much I agree with it,” Ntsimp writes for example.

Others think that blanking out entire pages might not be an ideal solution, and call for alternative forms of protest such as displaying a black background.

In an update today, Wales responds to some of the points raised in response to the idea. However, he still stands behind the blanking out protest and says that something has to be done quickly before the bill is rammed through in Washington.

“Time is not on our side here,” he says.

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Posted by plates55 - December 13, 2011 at 6:20 am

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Internet Censorship: Google Now Censors The Pirate Bay, isoHunt, 4Shared and More

Google has expanded its search blacklist to include many of the top file-sharing sites on the Internet, including The Pirate Bay. The changes were quietly processed and appear to be broader than previous additions. Google’s blacklist prevents the names of sites appearing in their Instant and Autocomplete search services, while the pages themselves remain indexed.

Since January 2011, Google has been filtering “piracy-related” terms from its ‘Autocomplete‘ and ‘Instant‘ services.

Google users searching for terms like “torrent”, “BitTorrent” and “RapidShare” will notice that no suggestions and search results appear before they type the full word. As a consequence, there’s sharp decrease in Google searches for these terms.

Initially only a handful of “piracy-related” terms were censored, but a recent update to the blacklist includes nearly all the top file-sharing websites.

Searches referring to torrent sites such as “thepiratebay,” “the pirate bay,” “isohunt,” “torrentreactor,” “btjunkie,” “kickasstorrents,” “sumotorrent,” “btmon,” “extratorrent” and many others are now excluded from ‘Autocomplete‘ and ‘Instant‘. Interestingly, the full url “thepiratebay.org” is still offered as a suggestion.

The new list further includes several cyberlocker websites that were perviously left unfiltered, such as “4shared,” “filesonic” and “fileserve.” Although Google doesn’t censor the content of the websites in question, the Google searches for the affected terms drop significantly as can be seen below.

Drop in Hotfile searches after it was censored in January.

By voluntarily censoring parts of their search services, Google is trying to keep on friendly terms with copyright holders. The downside to this is that they put perfectly legitimate companies such as BitTorrent Inc and RapidShare at a disadvantage.

There is currently no clear definition of what Google considers to be piracy-inducing, but Google claims that the blacklist helps to reduce online piracy.

“While there is no silver bullet for infringement online, this measure is one of several that we have implemented to curb copyright infringement online,” Google spokesman Mistique Cano previously told TorrentFreak.

“This is something we looked at and thought we could make some narrow and relatively easy changes to our Autocomplete algorithm that could make a positive difference,” Cano added.

How positive this difference really is, of course depends on who you ask. IsoHunt owner Gary Fung told TorrentFreak that Google is going down a dangerous path.

“It’s a lot more subtle than the censorship attempts made possible by the pending PROTECT IP and SOPA bills, but it’s still censorship and it starts small. Google is increasingly becoming a self-righteous Big Brother of the Web. So much for ‘Do no evil’,” Fung told us.

A Pirate Bay insider also told TorrentFreak that Google doesn’t live up up to its famous motto.

“”It’s just another step towards censoring their search engine altogether – without a legal basis. We’re also wondering why this happens at almost the same time as they’ve released Google Music – a service where they sell music which in some cases might be found on The Pirate Bay,” he added.

Despite criticism from the public and the businesses affected by their blacklist, Google has said that it will continue to expand its piracy filter. The big question is, where will they draw the line?

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Posted by plates55 - December 5, 2011 at 8:11 pm

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