Why Copyright Negligence Won’t Fly

As some of you may recall, Mr. Randazza and I recently wrote competing viewpoints on the extent of third-party liability for copyright infringement.  As some of the comments noted, the two articles talked past each other a bit.  My article focused on existing theories of copyright liability under the Copyright Act, while Mr. Randazza’s focused on a purportedly different, negligence-based theory of liability.  According to Mr. Randazza, Plaintiff’s may sue the owner of an unsecured Wi-Fi connection based on a common law theory of negligence that is entirely distinct from existing theories of copyright liability.

Now that I’ve had an opportunity to read Mr. Randazza’s article, I’d like the opportunity to respond.  Several commentators, including the Intellectual Property Director at the EFF,  Corynne McSherry, have begun to highlight very serious problems with the Mr. Randazza’s proposed theory, including statutory immunity via the CDA and/or DMCA and the fact that “copyright negligence” simply does not seem to exist.  I would also point out that Mr. Randazza’s focus on the “open Wi-Fi liar” seems to concede the point that the “open Wi-Fi truth-teller” has a valid defense under copyright law.  Simply saying that people might lie to take advantage of a defense is not an adequate reason to eliminate the defense.  Self-defense is a defense to murder, and can also be lied about.  Should it be eliminated?

But I digress.  I will now leave those discussions aside, and focus on yet another, probably fatal problem with Mr. Randazza’s negligence theory – federal preemption.  If you take the time to read all of the legal mumbo jumbo that follows, you will hopefully be convinced that negligence is a state law claim and one that is, in this situation, preempted by the Copyright Act.  Case law and common sense dictate that if Mr. Randazza would like to protect his clients’ copyrights, he must do so within the confines of the Copyright Act that I discussed in my prior article.

Section 301 of the Copyright Act

Preemption is a legal doctrine that essentially says that when state and federal laws cover the same topic, the federal law will trump (preempt) the state law, and a plaintiff will be barred from bringing the state law or common law claim.

In the context of copyright, the Section 301 of the Copyright Act is explicit about the scope of its preemption:

On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. 17 U.S.C. 301(a)(Emphasis Added)

Copyright preemption is extremely broad. Federal courts have recognized that:

  While the language of section 301 is quite clear,  Congress also reinforced its desire to sweep broadly in a report accompanying the legislation:

‘The declaration … in section 301 is intended to be stated in the clearest and most unequivocal language possible, so as to foreclose any conceivable misinterpretation of its unqualified intention that Congress shall act preemptively, and to avoid the development of any vague borderline areas between State and Federal protection. ‘ H.R.Rep. No. 1476, 94th Cong., 2d Sess. 130 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5746 (quoted in Rosciszewski v. Arete Associates, 1 f.3d 225, 232 (4th Cir. 1993).

Thus, Congress has clearly indicated that state-law claims which come within the subject matter of copyright law and which protect rights equivalent to any of the exclusive rights within the scope of federal copyright law … should be litigated only as federal copyright claims. Id.

Firoozye v. Earthlink Network, 153 F.Supp.2d 1151, 1121-22 (N.D. Cal. 2001)

In layman’s terms, these paragraphs emphasize that Congress has decided upon the extent of rights that are conferred by a copyright.  The rights conferred are the section 106 exclusive rights, including the right to copy, to perform, to prepare derivative works, etc.  The second part of section 301 emphasizes that because Congress is determining the extent of these rights, no person can claim an equivalent right under any common law cause of action or any state law.  This prohibition includes negligence, a state common law tort.

The Copyright Preemption Test

The test for copyright preemption asks two questions:

1) Does the work at issue fall within the subject matter of copyright law; and

2) Does the state law attempt to protect rights which are equivalent to any of the exclusive rights granted by the Copyright Act.

The first part of this test yields an obvious answer – the allegedly pirated movies are certainly within the subject matter of copyright law.  Mr. Randazza’s clients assert not only that the rights are within the theoretical scope of copyright, but claim to own the actual copyright in the subject works.  The movies are claimed to be wholly protected by copyright law, and almost the entirety of Mr. Randazza’s complaint that includes the negligence claim (available here) is premised on copyright law and alleged copyright violations.  This element would almost certainly be conceded by Mr. Randazza.

As such, we must move to the second part of the test and ask whether Mr. Randazza’s negligence claim attempts to protect rights that are equivalent to any of the exclusive rights granted by the Copyright Act.   I believe the answer to this question must also be yes.  Mr. Randazza seeks to protect his client’s copyrighted work from unauthorized copying and sharing.  These are precisely the rights protected by copyright law.  Rather than just assert this as a fact, however, I’ll give you the legal nitty-gritty.

Extra Elements?

In analyzing this second prong of the preemption test, most courts have adopted some form of the “extra  element” test, which would ask whether the state negligence action seeks “to protect rights which are qualitatively different from copyright rights.  The state claim must have an ‘extra element’ which changes the nature of the action.”  Del Madera Properties v. Rhodes and Gardner, Inc., 820 F. 2d 973, 977 (9th Cir. 1987).

The Second Circuit has also adopted this test, and described the inquiry as follows:

To determine whether a claim is qualitatively different, we look at what [the] plaintiff seeks to protect, the theories in which the matter is thought to be protected and the rights sought to be enforced.  Moreover, we take a restrictive view of what extra elements transform an otherwise equivalent claim into one that is qualitatively different from a copyright infringement claim.  Awareness or intent, for instance, are not extra elements that make a state law claim qualitatively different.  Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc. 373 F.3d 296, 306 (2d Cir. 2004)(Internal quotes/citations omitted).

Thus, we need to break down Mr. Randazza’s negligence claim, and look at

a) What it seeks to protect;

b) The theories in which the matter is thought to be protected; and

c) The rights sought to be enforced.

The negligence section (Section IX – Fourth Cause of Action) of Mr. Randazza’s recent complaint, provides the essential answers.  It asserts without reservation that the “negligent” owner of an open Wi-Fi network is responsible for

¶ 374 “unauthorized copying and sharing of Plaintiff’s Motion Picture”

¶377 “copying and sharing” and “interfering in Plaintiff’s exclusive rights in copyrighted work.”

¶ 378 “copying and sharing”

¶ 379 “negligently allowing others to unlawfully copy and share Plaintiff’s copyrighted Motion Picture, proximately causing financial harm…”

Under Part A of the preemption test, I think it’s fair to say that the negligence claim seeks to protect his client from unauthorized copying and sharing of his client’s copyrighted motion picture.  This is precisely the point of copyright law, and describes precisely the interests that the Copyright Act seeks to protect.  Exactly.  As such, this factor comes down obviously in favor of preemption.

Under Part B of the analysis, Mr. Randazza seeks to protect against the unauthorized copying and sharing of his clients’ motion pictures under a theory that the owner of an open connection is legally responsible for the copyright infringement of a third-party.  As my previous article in this series discussed, there is an entire body of copyright case law that addresses exactly who is (and is not) responsible for the infringements of third parties.  It is a doctrine that is wholly based on Copyright Act jurisprudence, and liability under these theories is solely based on Copyright Act infringements.

Some may question the way that I’ve stated Mr. Randazza’s theory for this purpose, and argue that really the negligence theory does include additional elements – that the theory is based on a duty, a breach, causation, etc.  Unfortunately for Mr. Randazza’s argument, these elements do not qualitatively alter the nature of the claim.  It is still a claim based on unauthorized copying.   The federal court in the Northern District of California examined this question, and gave us the following oh-so appropriate quote:

Because the essential allegation is still that Defendants unlawfully copied Plaintiff’s ideas, it is still a copyright infringement claim. Moreover, recharacterization of the claim as one of ‘negligence’ does not add a legally cognizable additional element because a general claim for copyright infringement is fundamentally one founded on strict liabilityThe alteration of the required mental state does not add an ‘additional element’Plaintiff’s negligence claim is preempted by federal copyright law.

Dielsi v. Falk, 916 F. Supp. 985, 992-993 (C.D. Cal 1996) (Emphasis added & internal citations omitted).

Obviously, the court in Falk recognized that simply rephrasing a claim does not change the essential nature of the claim.  Despite how Mr. Randazza attempts to phrase it, he seeks to recover for the damage to his client’s copyright.  Simply saying “negligence” caused the damage to the client’s copyrights does not change the fact that the actual nature of the damage is from alleged infringement.  Mr. Randazza must concede that unless there is an act of infringement, he has no claim against a wireless network owner.  The entire premise is the infringement.

Almost There…

Finally, let’s look at Part C of the analysis above, as I think this is perhaps the clearest indicator of why a negligence claim would be preempted in this situation.  Part C examines “the rights sought to be enforced.”  Again, I hope I don’t get accused of twisting his words, but it seems obvious that the “rights sought to be enforced” by the Mr. Randazza’s negligence claim are his client’s copyrights in the works at issue.

Mr. Randazza references his client’s “exclusive rights in copyrighted works” in paragraph 377 and plaintiff’s “copyrighted Motion Picture” in 379.  Mr. Randazza thus finds himself in the awkward position of trying to enforce rights that exist solely because of the Copyright Act while simultaneously arguing that his common-law negligence claim is not affected by Section 301 of the same Act.  As Section 301 states in absolutely clear terms “no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”  Unfortunately for Mr. Randazza, the rights that come from the Copyright Act go no further in their protections than the Copyright Act allows.  In fact, as one court has stated “the shadow actually cast by the Act’s preemption is notably broader than the wing of its protection.”  Mr. Randazza cannot have his cake and eat it too – if he would like to enforce the rights granted by the Copyright Act, he must also live with the limitations of its protections.

A Counter-Factual to Close the Case

If Mr. Randazza is right, the entire DMCA Safe Harbor system is meaningless and totally moot.  Stay with me on this one.

An overlooked element of DMCA immunity is that it doesn’t actually give a qualifying entity immunity to conduct the key activities that it covers (routing, system caching, etc).  It only prevents the imposition of copyright damages against a qualifying entity for those activities.  For example, Section 512(a) states that “a service provider shall not be liable for monetary relief… for infringement of copyright by reason of the provider’s transmitting, routing…”)

In order to survive preemption, a court would have to find that Mr. Randazza’s negligence action is “qualitatively different” than the causes of action for copyright. If negligence is “qualitatively different” however, the damages would be for the negligence, not copyright infringement.  It follows then, that an entity that qualified for a DMCA Safe Harbor would still potentially be liable for “negligence” damages for precisely the same activities (routing, system caching, etc.) that the Safe Harbors were designed to protect.

To put it another way, if an old lady with an open Wi-Fi connection could be held liable for its “negligent” provision of an internet connection to an internet “pirate”, why couldn’t Comcast be held liable for the same?  Can Google be liable for “negligent failure to prevent infringement” for copyrighted videos on Youtube?  If Comcast or Google can be liable under a negligence theory for EXACTLY the same conduct that is protected under the DMCA Safe Harbors, then the DMCA Safe Harbor system becomes totally meaningless.  It’s hard to believe that legislators intended that the entire (carefully lobbied) safe harbor scheme was meant to do nothing.  Mr. Randazza knows better than to try to sue Comcast or Google on this theory.  He might sue you though.

The Takeaway 

Mr. Randazza’s negligence theory does not hold up under scrutiny.  It’s not just that the theory is based on an inappropriate analogy to a 1932 case about tugboats.  It’s also that his theory is preempted by Section 301 of the Copyright Act and should be dismissed by any court that analyzes this issue.  Mr. Randazza would have you believe that he has come up with a new theory (as in “without precedent”) that allows him to hold the owner of an unsecured wireless network liable, based upon state common law theories of negligence, for any copyright infringements that occurs on the network.  Unfortunately for Mr. Randazza, the Copyright Act itself prohibits precisely the kind of common law theory that his article propounds: “no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.” 17 U.S.C. 301.

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When Pirates Steal Your Wifi

On August 6th, TorrentFreak ran the following article as one side of a point-counterpoint series regarding third party liability for copyright infringement.  In this article, I analyze a statement of third party copyright liability commonly used by copyright trolls, and argue that it is not an accurate statement of existing law.

On the other side of this argument, attorney Marc Randazza responded and presented a new theory that states that the operator of an unsecured wireless network can be held responsible for the infringement of another based on common law negligence theory.

Here is my original article as it appeared on TorrentFreak:

The continuing adventures of the copyright trolls have been covered widely on this blog and others, so I will limit my thoughts today to one particular aspect of the scheme: Copyright trolls’ claims regarding your responsibility for someone else’s infringement of copyrighted works.

Or in other words, are you liable for the infringements of other people when you choose to leave (parts of) your wiFi network open to friends, family or even complete strangers. In the press many of the attorneys representing copyright holders claim you are. Some even have a dedicated section on the topic included in with their settlement letters.

Jonh Steele for example uses the following description, which he has irnonically enough pirated from a FAQ that competitor copyrightsettlements.com hosts on its website.

“If you are unfamiliar with the copyright protected file or content, we normally find that the infringement was the result of a spouse, child, roommate, employee, or business associate uploading, downloading or otherwise sharing or displaying the copyright protected material over your Internet connection. Infringements can also result from an unsecured wireless network. In any of these scenarios the Internet Service Provider (ISP) account holder is still legally responsible for the infringement(s) and settlement(s) fees.”

This statement needs to be deconstructed and examined.  There is a lot of (mis)information in there, with many startling claims about copyright liability.

As a whole, the trolls’ statement of your potential defenses reminds me a lot of the mob’s policy on similar issues in Goodfellas :  Your roommate downloaded this?  F__k you, pay me.  Your child downloaded this?  F__k you, pay me.  Your ‘business associate’ or someone you’ve never met downloaded this?  You get the idea.  Perhaps it’s not surprising that the flow chart at copyrightsettlements.com always ends up at “you are guilty,” however THIS IS NOT THE LAW.  In fact, their claims are legally incorrect in a fun assortment of ways.  I’m going to focus only on the ways that it’s incorrect under existing copyright law in this article.

Third-Party Liability for Infringement under Existing (Real) Copyright Law

It’s important to focus on the concept of third-party liability under copyright law because the copyright trolls’ entire scheme is built on one particular aspect of copyright law – statutory damages.  Normally, a plaintiff’s recovery is limited to actual damages, or the monetary measure of the actual harm done.  The copyright law, however, imposes statutory minimum and maximum penalties that are grossly disproportionate to the value of an actual work (i.e. one copy of a song or video), up to $150,000 for the most egregious infringements.  Perhaps not surprisingly, this $150,000 figure gets cited a lot by copyright trolls as the amount to which they will be entitled if they sue you.

Courts have articulated three basic ways that a person can be held liable for infringing another’s copyright: direct liability, contributory liability, and vicarious liability.  Direct liability means, quite simply, that you infringed the copyright yourself.  This is first-party liability and is probably not surprising to anyone.  The other two are the focus of this article, and the ultimate rebuttal to the misstatements on the FAQ.

A.  Contributory Infringement

In MGM v. Grokster 545 U.S. 913, 930 (2005) the United States Supreme Court (USSC) described liability under the doctrine of contributory infringement as follows:  “One infringes contributorily by intentionally inducing or encouraging direct infringement.”  The USSC approvingly cites Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., the 2nd Circuit Court of Appeals adopted the following test for contributory infringement.

“One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing  conduct of another, may also be held liable for the infringement.”  443 F2d 1159, 1162 (2nd Circuit 1971).

The Gershwin test has been widely adopted by courts, including in the 9th Circuit, home to CEG.  As you can see, this test is far narrower than the F__k you, pay me test adopted by CEG/copyrightsettlements.com.  The Gershwin test specifically requires:

1) Knowledge of the infringing activity

2) Intent

3) Inducing, causing, or materially contributing to the infringing conduct of another.

The 9th Circuit had a chance to revisit the issue of contributory infringement in the wake of the USSC ruling in Grokster, described above, and elaborated further on the requirements for contributory infringement in the digital realm in Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146(9th Circuit, 2007).  Perfect 10 held that:

“a computer system operator can be held contributorily liable if it ‘has actual knowledge that specific infringing material is available using its system and can “take simple measures to prevent further damage’ to copyrighted works, yet continues to provide access to infringing works.”  (at 1172- internal citations omitted).

Notably, the italics in this sentence were the court’s own, and emphasized ACTUAL knowledge of SPECIFIC infringing material.  This is certainly not the test described by CEG.

B.  Vicarious Infringement

The USSC also described vicarious infringement in MGM.  The Court stated that one “infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Grokster, 545 U.S. at 930, 125 S.Ct. 2764.

Like contributory liability, above, this definition has multiple elements, BOTH of which need to be shown to before imposing liability.

1)  Profit from direct infringement

2) A right (and ability) to stop or limit the infringement

This test has two distinct elements, BOTH of which need to be shown to impose liability.  I cannot think of a good faith argument that any of the parties described by the core claim actually profit from infringing activities, especially when the work that is claimed to be infringed is porn.  An employer profits from an employee downloading porn?  Really?  You profit when someone downloads porn via your unsecured connection?  Profit?  This stretches all bounds of credulity.

It almost seems unnecessary to go into the second element, the right and ability to control, when the first element cannot reasonably be shown.  But this prong also raises a host of issues, especially in cases involving spouses, “business associates”, or roommates.  I need only recall the look of my college kitchen to conclude that we never really had sufficient right or ability to control each others’ activities in any way.


The USSC discussed a third potential avenue for third-party liability in MGM under the broader rubric of contributory liability, but this route is equally unhelpful for the core claim.  In MGM the Court recognized that one could be liable if they “induced” the infringement of another.  The Court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” MGM at 936-37.

Although this could conceivably apply to an unsecured router, the court is quick to extinguish this possibility for the situations described in the core claim.  The court specifically states that

“Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability… The inducement rule, instead, premises liability on purposeful, culpable expression and conduct…” (at 937).

Notably, the FAQ page emphasizes repeatedly that purposeful, culpable expression and conduct is not at all necessary.  It does emphasize, however, that you are still liable.

The Takeaway

The copyright troll’s core claim regarding third-party liability is extremely misleading regarding the present state of third-party liability under copyright law.  As each misstatement works to the benefit of the trolls, I can only assume that this misrepresentation is intentional.  One can only wonder whether they will face claims of fraud and misrepresentation from those who were misled by these statements.  I contacted the legal department at CEG (legalteam@ceg-intl.com) and attorney Ira Siegel requesting any legal support that they could muster in support of the core claims.  I am eagerly awaiting a response, though I will not hold my breath.

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Poker Indictments Part II: An Upside-Down Pyramid Scheme

It’s been awhile since my last blog post, and I’ve had the opportunity to read and review the 50 page complaint detailing the government’s allegations. The government charges include nine counts, as follows:

1: Conspiracy to Violate the UIGEA
2: Violation of UIGEA (Pokerstars)
3: Violation of UIGEA (Full Tilt)
4: Violation of UIGEA (Absolute Poker)
5: Operation of an Illegal Gambling Business ( Pokerstars)
6: Operation of an Illegal Gambling Business (Full Tilt)
7: Operation of an Illegal Gambling Business (Absolute Poker)
8: Conspiracy to Commit Bank & Wire Fraud
9: Money Laundering Conspiracy

First, it’s important to understand what is prohibited by UIGEA itself. According to the indictment, UIGEA makes it

“a federal crime for gambling businesses to ‘knowingly accept’ most forms of payment ‘in connection with the participation of another person in unlawful internet gambling.’”


The UIGEA also makes clear that, although it defines a prohibited bet or wager (as detailed in my prior post), it is not intended to enlarge or replace any state law on the issue. As such, in order for an individual to violate UIGEA, they must also operate an “illegal gambling business” under state law. Thus, the first four counts are premised on a violation of a state law leading to a violation of UIGEA, and the next three counts are based entirely on violation of the state law. I thought it would be interesting to take a look at that law today.

Paragraph 33 of the indictment (among others) alleges that the defendants knowingly accepted

“ in connection with the participation of another person in unlawful internet gambling, to wit, gambling in violation of New York Penal Law Sections 225.00 and 225.05 and the laws of other states where the gambling businesses operated…”


New York Penal Law Sections 225.00 and 225.05

As an initial matter, Section 225 is the “definitions” section of New York’s gambling law, and I am pretty sure that you can’t actually violate a definition. Which brings us to §225.05 – the real substance behind this billion dollar indictment. Under §225.05, a person is guilty of “Promoting Gambling in the Second Degree” when he “knowingly advances or profits from unlawful gambling activity.” [3]

The defendants may indeed have violated this section. Unlawful gambling activity is defined in §225 as any gambling activity that is not specifically authorized by law. The next sentence is the one that got me though. “Promoting gambling in the second degree is a class A misdemeanor.” [4]

As a Class A misdemeanor, a defendant cannot be sentenced to more than a year in jail for its violation. To give you some idea, other Class A misdemeanors include: making graffiti, fourth degree marijuana possession, menacing in the second degree, or jostling. Yes, jostling.

So, basically, this entire indictment is built like an upside-down pyramid. At the point, holding the entire weight of the indictment, is a Class A misdemeanor in New York. The UIGEA counts form the next layer of the pyramid, based entirely upon the same misdemeanor. Finally, to top it off, the government has thrown in the bank fraud, wire fraud and money laundering, all allegedly designed to get around the original Class A misdemeanor. Viola. Looks sturdy enough to support several billion dollars…

1. Superseding Indictment: US. v. Scheinberg et. al. at paragraph 14.
2. Id. At paragraph 33.
3. NY Penal Law Section 225.05.
4. Id

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The Perplexing Priorities of the DOJ and the SDNY

I plan to cover a wide-range of topics on this blog, mostly involving legal issues that might be of interest to me or my clients. For my first, I thought it would be interesting to make a couple of initial observations that are brought to my mind by Friday’s indictment of key executives at Poker Stars, Full Tilt Poker, and Absolute Poker. I hope to examine the legal issues raised in more detail in some future posts.

The indictment, which was unsealed on Friday, charges a number of violations of the Unlawful Internet Gambling Enforcement Act (UIGEA) and conspiracy to violate the act, among other things. The indictment is built upon the premise that internet poker is unlawful gambling as defined by the act. The act defines a prohibited “bet or wager” as “the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance…” 31 U.S.C. 5362(1)(A).

It seems to me that this definition includes not only poker, but also a significant percentage of the economic activity of the United States. This fact was not lost on the drafters of this law, who specifically exempted securities and commodities exchange and the insurance industry, among other activities. This is essentially an acknowledgement that legislators were unable to come up with a definition of gambling which did not also prohibit securities and commodities exchange activities, the insurance industry, and the other exempted activities. Which is interesting, and brings me to my second observation.

The Southern District of New York (SDNY), which covers Manhattan, the Bronx, and several outlying counties, was apparently in charge of the online poker investigation and indictment. The SDNY issued a press release additionally thanking the “Complex Frauds” and “Asset Forfeiture” divisions for their help in putting a stop to the online menace. Which got me thinking: weren’t there some other complex frauds committed in that general neighborhood recently? Perhaps some that might be more destructive to the country at large? Like maybe at 70 Pine Street, where AIG houses their international offices? Or perhaps 383 Madison Avenue, the former home of Bear Stearns, whose executives are accused by civil plaintiffs of cheating and defrauding investors through the sale of securities that they characterized themselves as a “sack of s__t”[1]? These executives landed nice new gigs within the friendly confines of downtown Manhattan. Meanwhile, the SDNY Complex Frauds division has put a stop to the agony of the bad beat by arresting two guys (in Utah and Nevada), convincing a third (from Illinois) to surrender in Manhattan, and indicting 8 others who are presently outside the reach of U.S. law enforcement.

Probably I’m just missing something. Right?

1. http://www.theatlantic.com/business/archive/2011/01/e-mails-suggest-bear-stearns-cheated-clients-out-of-billions/70128/

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