As a bunch of the proprietors of domain names seized in earlier questionable domain seizures are preparing to fight back against the seizures, Homeland Security can't resist seizing more domain names. This time, it looks like the seizures were more focused on sites selling counterfeit physical goods, and the seizures were purposely timed to Valentine's Day. Going after sites that sell counterfeit goods makes a lot more sense than some of the other sites that were seized in the past, but there still are serious questions about the legality of such a seizure prior to any adversarial hearing, and with no attempt to even communicate with the site operators. I don't know if this is the case or not, but how does ICE know that these sites did not believe they were selling legitimate products? What's wrong with going through an adversarial hearing in which the site's operators are allowed to defend themselves? If they're really breaking the law, let that be determined at a trial. At the very least, considering the widespread questions about the legality of these seizures, wouldn't it make sense for Homeland Security and ICE to wait until the legality of such seizures is reviewed by a court?
This week's list of "favorite" posts of the week is handed off to Gabriel Tane
Friends! Countrymen! Techdirt-ians! Lend me your... eyes! It's my turn to stroke my ego and pretend
that anyone cares to hear what I have to say about issues. But, if you're still reading (and keep on
reading), then I'll assume you're at least interested. So, read on and thanks for your attention.
First up, we'll start with a whole slew of related articles that
show how the DHS/ICE domain seizures have some serious questions that need some
answers. This week, we've seen stories
that discuss what
does the situation mean to
our internationalrelations. The question of jurisdiction has been batted
around in the comments as a matter of technicality, but not a lot was said
about how far-reaching of an effect this may have if other countries decide
they don't like how we seem to be rather bully-ish about how our laws are more
important than others'. I don't know the
answer to that question, but since our actions so far have been to pull our
plug out and thumb our noses, I don't think I want to know the effect.
Further, we've seen where the technical
understanding and legality
have been called into question by more than just
bloggers and interested lawyers. Now, have the questions
been raised in such a way that will force the hand of DHS/ICE? Probably not; but the fact that so many
people are raising their eyebrows about it means there is something going on that needs to be looked at. And it will, sooner than later I hope.
Second, I also got quite interested in the patent-vs-innovation
article that was posted. It seems that
the status-quo is being questioned even by those "inside" the system. In a very broad way, I wonder how long until
actual common sense is going to win over the juggernaut of established bureaucracy. Hmm...
Third, I was very interested to hear about the situation in Egypt. Actually, I heard about it here first. I didn't follow it completely and thoroughly, but I did have a face-palm moment at this
story about the timing of American legislation that people said included an "internet kill switch." I was worried about someone
posting comments from a tin-foil fort about how Egypt was some kind of warning
about what would happen if the US increased its censorship... and here comes the
government showing how such a claim wouldn't be too far of a stretch. sigh. At least China
was worried about the implications.
Further on the face-palm front... I was glad to see the TSA
getting a clue with new scanners that don't show you naked, and realizing the people who write the paychecks are not
happy with their actions -- and not surprised to see them completely ignore the
need for effective screening that
actually does something other than
justify a paycheck.
Fourth and finally, ain't technology
grand!? Seeing Bryant Gumbel and Katie Couric discover the internet was fun. Now, much like the rest of
you, I found this to be an amusing view on how technology has grown and how
silly we see ourselves then, 20+
years later. I was, again like most of
you, sadly not surprised when a major news corp followed this up by completely overreacting
to the situation, firing the person responsible and, thus, creating the much-loved Streisand-effect. I wonder how long it's going to take before
the reality of the internet's openness and, well, immortality sinks in to the
people who think they can just wish information away.
There were so many fun stories this week, I know I didn't get them all covered. I think I covered the ones that echo
strongest with me: the fact that our government seems to want to censor what's
on the internet (arguably, at the beck and call of the entertainment industry)
while another country (our ally?) faces some very serious consequences for that very action.
I think we've seen the start of a trend towards people
wanting real answers to what's going on. I know that as I read the comments from both
sides (at least, those on either side
that choose to provide data), I learn more and more about how these things do
and should work. For that, I would like
to take a purely-selfish moment and thank all the commenters -- regulars, ACs, insiders and outsiders -- for helping me broaden my knowledge about the world
around me.
And, of course, I do so love to see how far technology has
come in the last few years... and if anyone wants some authentic
AOL coasters, let me know ;).
The Marketplace radio show from American Public Media spoke to Special Agent James Hayes from Homeland Security, who was apparently in charge of the "raids" (if you can call them that) that involved the seizing of domain names under the legally questionable theory that linking to infringing material is, by itself, criminal copyright infringement. I've yet to find any legal expert who seems to believe that the law actually says this anywhere.
In the interview, John Moe asked Agent Hayes a very simple question: given that these domains were all seized based solely on the fact that they link to infringing content hosted elsewhere, and all of the same content is also linked from Google, will the Feds seize Google's domain name? Well, more specifically, Moe asks if ICE could seize Google's domain name. Amusingly, right after being asked, Hayes conveniently gets cut off, but he does call back and the question is asked again. You can hear the whole thing here:
However, once he gets back, he tries to tap dance around this issue. Hayes says "no" that ICE will not seize Google's domain name and that's because it's only targeting sites that "don't do due diligence" to make sure that the content they're linking to isn't infringing. There's a pretty serious problem with this claim in that it's wrong on both sides of the equation. First off, Google, as a search engine, does no due diligence to check that links only go to non-infringing content. Second, in at least some of the cases (specifically in the case of dajaz1), we know that it was actually Homeland Security and folks like Special Agent Hayes who "failed to do their due diligence," so the songs named in the ICE affidavit were, in fact, provided by the labels or representatives of the musicians. In other words, according to Special Agent Hayes' own criteria, Google is more of a criminal operation that Dajaz1.
Hayes then goes on to repeat the long-debunked talking points of the industry -- insisting that anyone watching a PPV event without paying represents lost revenue. Apparently all the studies that say this isn't the case don't matter, so long as someone who directly financially benefits from Hayes' actions tells him otherwise. On top of that Hayes claims that this leads to lost tax revenue and jobs. Of course, this has also been debunked, since the money "not spent" on these events doesn't disappear, but is still spent in the market and, quite conceivably, ends up going to fund more jobs and industries with higher tax rates.
Also amusing is that Hayes uses this massively tenuous link to "tax revenue" to answer the question so many people have been asking: what the hell does Immigration and Customs have to do with a foreign website? The answer, apparently, is that ICE's mission is to protect the US Treasury and one part of that is to protect tax revenue. Of course, that argument makes no sense. By that same reasoning, when Henry Ford first started mass producing cars, Customs should have shut him down because it killed off jobs in the horse carriage industry, thus decreasing the tax base from that industry. Of course, everyone who thinks this through realizes that's silly, because the money didn't disappear, it shifted elsewhere -- to a more efficient arena, which actually resulted in economic growth and greater taxes. What Hayes and ICE are doing here is the opposite. They're holding back more efficient distribution systems, stifling speech and hindering economic growth, which actually will result in a smaller tax base.
Moe pushes back a little and asks Hayes if he thinks that linking is the same as hosting the content. Hayes doesn't answer, but simply says that they're targeting the sites that "get a lot of traffic," to which Moe reasonably shoots back: "Well, Google gets a lot of traffic." Hayes then makes stuff up about how a search engine is different, but that's based on nothing factual. He makes an artificial distinction and then finally states "well, it's a difference in our mind." Great, so because ICE is technically clueless and thinks there's a difference, it's all fine and dandy?
Moe then asks Hayes if he links to a site that has infringing content from his Public Radio blog, will ICE shut down the site. And Hayes makes a really weird remark that makes no sense, sayings that if Moe "gets advertising funds from a site that provides unauthorized content" then he might have to shut them down. But that's something new. We've seen no assertions or evidence that the sites that have been take down received ads from the other sites that were hosting the content. Is Hayes totally making stuff up now? It sounds like Hayes doesn't even understand what he's talking about.
Finally, Moe asks: if a site links and embeds to all the same content, but does not profit from it (i.e., does not have advertising), is it criminal? Hayes totally punts and says he'd have to check the law. Yes, really. So the guy is not an expert on the technology and admits he's not an expert on the law in question. So what is he an expert in and why is he leading these questionable seizures?
On a separate note, it's nice to see that Homeland Security is willing to chat with the press again after telling us that it will not speak about these issues because it's an "ongoing investigation before court." Apparently, Homeland Security was also lying to me (though, we knew that already).
What's scary about this is that every time someone from Homeland Security speaks on this issue, they display some pretty serious ignorance of the technical issues and of the specific details of the questions people are asking. They seem to get around these with wishful thinking about how -- in their minds -- these sites are "different."
A few days after everyone already knew it had seized the domains of some sites that apparently were associated with streaming sporting events online, Homeland Security has put out its official press release about the domain name seizures. As many people thought, Homeland Security basically admits that it decided to seize these domains at this time because of the Super Bowl. Nice to see that Homeland Security is working for the NFL these days.
Eric Goldman was kind enough to send over the affidavit that Homeland Security used to seize the domains this time around (it's embedded below), but as we saw last time around, the affidavit itself is chock full of legal and technical errors, compounded by assertions-as-facts that seem to have little basis in reality. This is immensely troubling, especially given that the specific legal issues here are hardly settled law, and Homeland Security seems to be acting as if these cases are no brainers, allowing them to flat out seize domains, even when those websites have been declared perfectly legal in their home countries.
The biggest problem is that Homeland Security seems to suggest -- without a hint of doubt -- that merely linking to infringing content is criminal copyright infringement. That is a huge stretch. The affidavit appears to make it clear that it believes that these sites are guilty of direct criminal copyright infringement, rather than any sort of contributory copyright infringement. As we've discussed in the past, the courts have tended to say that embedding and linking can be contributory infringement, but not direct infringement. Homeland Security and ICE may be in for a bit of legal trouble trying to prove that embedding is direct infringement.
As with the last batch of seizures, it quickly becomes clear that Homeland Security was taking orders from private companies, and made absolutely no effort whatsoever to determine if the assertions made by those private parties (who might be helped by having Homeland Security shut down competitors and/or more innovative solutions) were accurate. For example, the affidavit, written by yet another recent addition to the Homeland Security force (though, unlike last time, when it was a kid fresh out of college, this time the guy, agent Daniel Brazier, was a police officer before this job came calling) seems to rely solely on information from various sports leagues (the NFL, NBA, NHL, WWE and UFC -- I'm really surprised that MLB isn't included, but that's probably only because it's the off-season), and appears to make no attempt to independently verify much of the information provided by those leagues. For example, without any evidence or proof, he asserts that the leagues "suffer significant negative impact from the unauthorized streaming of live television programming."
You would think that such an assertion would require proof. There is none. There are more assertions related to this, but no evidence that wider distribution of the video (including the commercials) does any actual harm. Agent Brazier claims that because of these streams, it impacts the league's ability to sell game tickets. This is laughable. Years ago, these same sports leagues would claim that having games shown on TV "hurt" the ability to sell tickets. Only recently have some of the leagues realized this is simply untrue. Larger audiences lead to more connected fans, meaning more fans willing to come out to see games live, because they know that the live experience is totally and completely different than the on-screen experience.
I find it disturbing that Homeland Security would repeat this blatant myth in order to support suppressing and censoring websites.
There are some other issues as well. Part of the argument against atdhe.net, ilemi and channelsurfing.net is that they embed from elsewhere online streams from MSNBC. MSNBC apparently told Agent Brazier that it "had not authorized third party distribution over the internet of its broadcasts" by these sites. One little problem: if I go visit MSNBC TV, I see live streaming of content from the channel. And, if I click on the "clip & share" link, I am given an option to embed the stream. Yup. It certainly looks like MSNBC does, in fact, give permission to embed its content on other sites. Anyway, I've embedded some video below from MSNBC. I'm curious if this makes Techdirt a criminal enterprise. Perhaps I'll find out after Homeland Security seizes our domain.
Furthermore, part of the claim of "criminality" on these various sites are the fact that advertisements are "periodically displayed at the bottom of the video." Of course, since these sites appear to be embedding the videos from elsewhere, that would suggest that the advertisements have nothing to do with the sites in question, but with whichever site the video originated from. Are Homeland Security's investigators really confusing such basic points on how the internet works?
Finally, it appears that every one of these sites clearly stated that it did not host any content, and that it obeyed the local laws from where the server was located. The affidavit mentions this each and every time... and then doesn't seem to care at all about this. Now, the argument against this, of course, is that Homeland Security doesn't care one bit about the laws in other countries, and is only concerned about the laws in the US. That's all well and good... in theory. But reality makes this a bit more complex. If the website is hosted and operated in a foreign country, claiming that the domain name itself is subject to US laws seems like a huge stretch, and will only serve to increase concerns from foreign countries that the US government has too much control over the internet. Even worse, in the case of Rojadirecta, Agent Brazier seems to flat-out admit that the site targets people in Spain by highlighting how much traffic it gets in Spain. So if the site is hosted in Spain and clearly targets people in Spain -- and the affidavit admits this -- why is a US court saying the domain can be seized?
Unlike last time, when the magistrate judge in question literally rubber stamped the affidavit, at least magistrate judge Frank Maas appears to have decided to really sign this document. However, there is no indication that he followed the rules required under Fort Wayne Books v. Indiana, which requires a higher standard than probable cause when attempting to take "materials presumptively protected by the First Amendment" out of circulation. There is no indication that any effort is made to surpass these basic First Amendment hurdles. There is no indication that the judge took the time to find out whether or not these seizures were required to preserve evidence, as case law suggests is necessary in such circumstances.
Once again, it appears that Homeland Security is acting as something of a rogue cowboy operation, where it feels no compunction about seizing domains under an extremely questionable legal theory that linking or embedding is somehow direct copyright infringement. I've now spoken to numerous lawyers about this, and I can't find one who thinks this is a clear case of criminal copyright infringement. Similarly, there are serious questions concerning the fact that these websites are all hosted in foreign countries, and all of them made it clear that they sought to obey the laws in their own countries. Even more amazing is that despite the fact that many of these issues were raised previously, Homeland Security has simply decided to forge ahead. One hopes that a court will put a stop to these seizures before too long.
We've been talking a lot about Senator Ron Wyden lately, as he appears to be one of the few folks left in Washington DC who seem to actually care about overreaching efforts by law enforcement -- especially in the area of copyright. We've talked about his efforts to block COICA, question ACTA and require more oversight on government spying. He's also not been shy about standing up for what he believes in, even when corporate interests start pressuring him, such as his eloquent response to companies who urged him to support censorship via COICA.
And, now, he's come out expressing serious concern about the recent domain name seizures done by Homeland Security's Immigration and Customs Enforcement (ICE) group. In a letter sent to Attorney General Eric Holder and ICE director John Morton (embedded below), Senator Wyden raises numerous questions, and it's clear that he thinks ICE has gone way beyond what is reasonable and legal. Many of the points in his letter seem to come directly from issues we've raised here on Techdirt -- including (specifically) the fact that all of the music used to seize the dajaz1.com domain were sent by music industry or artist representatives. He also seems quite concerned about who is driving these seizures, and if it's just companies trying to "create competitive advantages in the marketplace."
The letter highlights that we already have a process in the DMCA that lets copyright holders target and remove infringing content, and do so in a way "without impinging on legitimate speech that the website may also facilitate." He also is clearly concerned about the lack of due process and the fact that these seizures do "not appear to give targeted websites an opportunity to defend themselves before sanctions are imposed." He also notes that there's still a "contentious legal debate about when a website may be held liable for infringing activities by its users" -- a point that ICE continues to seem to think is settled law, when it is anything but. In fact, he notes: "I worry that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court." Finally, he points out that the whole thing is "alarmingly unprecedented in breadth of its potential reach."
From there, he lists out a series of questions that he wants Holder and Morton to answer:
How does ICE and DoJ measure the effectiveness of Operation In our Sites and domain seizures more broadly -- how does the government measure the benefits and costs of seizing domain names?
Of the nearly 100 domain names seized by the Obama Administration over the last 9 months, how many prosecutions were initiated, how many indictments obtained, and how were the operators of these domain names provided due process?
What is the process for selecting a domain name for seizure and, specifically, what criteria are used?
Does the Administration make any distinction between domain names that are operated overseas and those that are operated in the U.S.?
Does the Administration consider whether a domain name operated overseas is in compliance with the domestic law from which the domain name is operated?
What standard does the Administration use to ensure that domains are not seized that also facilitate legitimate speech?
What standards does ICE use to ensure that it does not seize the domain names of websites the legal status of which could be subject to legitimate debate in a U.S. court of law; how does ICE ensure that seizures target on the true "bad actors?"
Does the Administration believe that hyperlinks to domain names that offer downloadable infringing content represent a distribution of infringing content, or do they represent speech?
Does the Administration believe that websites that facilitate discussion about where to find infringing content on the Internet represents speech or the distribution of infringed content? What if the discussion on these websites includes hyperlinks to websites that offer downloadable, infringing content?
What standard does DoJ expect foreign countries to use when determining whether to seize a domain name controlled in the U.S. for copyright infringement?
Did DoJ and ICE take into account the legality of Rojadirecta.org before it seized its domain name? If so, did DoJ and ICE consult with the Department of State or the United States Trade Representative before seizing this site in order to consider how doing so is consistent with U.S. foreign policy and commercial objectives?
In an affidavit written by Special Agent Andrew Reynolds, he uses his ability to download four specific songs on the domain name dajaz1.com as justification for seizure of this domain name. According to press accounts, the songs in question were legally provided to the operator of the domain name for the purpose of distribution. Please explain the Administration's justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.
Can you please provide to me a list of all the domain names seized by the Obama Administration since January of 2009 and provide the basis for their seizure?
Do ICE and DoJ keep a record of who meets with federal law enforcement about particular domain names? If not, would you consider keeping such a record and making it publicly available, to ensure transparency in government and that Operation in our Sites is not used to create competitive advantages in the marketplace?
He basically seems to hit on all of the key points, so it'll be interesting to see how Holder and Morton reply, but given their existing responses in various speeches, it's not hard to predict that they'll sidestep most of these questions, and go with something along the lines of "infringement bad! danger danger!" Either way, kudos (again) to Senator Wyden for being one of the few politicians left who really does appear to care about free speech and due process.
Homeland Security and its Immigration and Customs Enforcement (ICE) group sure know how to create "international incidents" left and right. The latest (as pointed out by Slashdot) is that as part of the process of reviewing the cases of a bunch of Indian students who were allegedly duped by an operation called "Tri-Valley University" in California, ICE agents have put GPS tagging ankle-bracelets on the students to track their movements. According to the reports, Tri-Valley was a "sham" that helped foreign nationals gain immigration status in the US. That certainly sounds like it's broken the law, but to then go and tag the students with GPS monitoring bracelets while ICE sorts this all out seems rather aggressive -- and officials back in India are protesting the way the students are being treated:
But New Delhi is not happy with students being treated like criminals. Expressing "serious concern," a government spokesman said India has conveyed to the US authorities that the students, "most of who are victims themselves, must be treated fairly and reasonably, and that the use of monitors on a group of students, who were detained and later released with monitors in accordance with US laws, is unwarranted and should be removed."
It's almost as if ICE's goal is to make the US government an even bigger laughingstock for being the stereotypical over aggressive law enforcement cowboys often portrayed in the movies.
Just as with last time Homeland Security's Immigrations & Customs Enforcement (ICE) group seized a bunch of domain names, the deeper you look into what sites were targeted, the more questions are raised about how ICE seems to interpret the law in its own unique manner. Lots of people do this, but usually they're not the federal government with the ability to simply seize property with no adversarial hearing and no concern for either due process or the First Amendment.
For example, it appears that a bunch of the domains seized this week were focused on sports streaming. Of course, this all seemed to come down on Super Bowl week, so we're almost surprised that ICE didn't announce the seizures from the NFL's headquarters, like they did at Disney's headquarters last summer. Among the other sites seized (beyond the ones we mentioned yesterday) are Channelsurfing.net, Firstrow.net, Atdhe.net and Ilemi.com. At this point, we've now seen Homeland Security seize .com, .org and .net domain names.
I'll be looking into more detail on all of these sites (many of which have already set up shop under different domain names) to get a better understanding, but after my initial review of Channelsurfing.net, a Swedish site, there are really serious questions raised. That's because Channelsurfing -- a site based in Sweden -- does not appear to host any content, nor link to any downloadable content. Instead, it was built entirely of embeds of streaming video offerings from elsewhere on the internet (and the site was known to obey takedown requests). Nearly four years ago, we questioned whether merely embedding videos could be copyright infringement.
While we haven't yet seen the affidavit ICE used this time around, if the affidavit used last time is any indication, ICE agents claim that these sites are involved in direct infringement of copyright for criminal purposes. We've already noted that there is no such thing as criminal contributory infringement right now, so "direct" infringement is the only real option for ICE.
And that's a big problem for ICE.
That's because embedding a video from another site is almost certainly not direct infringement. The case that gets the most attention on this is Perfect 10 v. Google in the 9th Circuit, which discussed Google's in-line linking of images hosted elsewhere. As the court ruled:
Google does not, however, display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects... in which a work is fixed... and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy.
As the Citizen Media Law Project at Harvard notes on this issue:
The court went on to conclude that HTML instructions do not themselves cause infringing images to appear on a user's computer screen because the HTML instructions merely convey an address to the user's browser, which itself must then interact with the server that stores the infringing image. Accordingly, the mere provision of HTML instructions, in the view of the 9th Circuit, does not create a basis for direct copyright infringement liability.
Now, a few caveats on this. This ruling still only really matters in the 9th Circuit, and it's doubtful that the domain seizures ran through the 9th Circuit. However, this ruling has been relied on elsewhere, so it's a bit presumptuous to assume that it absolutely does not apply elsewhere. There are also separate questions about whether or not knowingly including infringing embeds changes the equation, but the point is it's certainly not a black-and-white legal question. That's why little things like due process and adversarial hearings on these things matter. The law is anything but clear cut on this particular issue, and seizing a domain name without even letting a court hear the arguments on the other side is immensely troubling. That Homeland Security has continued to do this despite the serious questions raised about their last round of seizures suggests it's an organization that is not interested in the rule of law, due process or the First Amendment at all, but is on some sort of odd quixotic quest to please entertainment industry partners. This is not how our government is supposed to act.
With Homeland Security's Immigration and Customs Enforcement (ICE) group now seizing domain names of perfectly legitimate foreign companies, one of the "defenses" of this action is that what those sites do may violate US laws (the lack of an actual court deciding this is conveniently overlooked, but we'll let that slide for now) and thus since the domains are managed by US-based registrars, it's technically property in the US, and thus open to seizure. That, of course, is a case of focusing on the technicality of the situation, rather than the reality of the situation. With Rojadirecta, it's pretty clear that the site was used almost entirely by people in Spain, not in the US. That the .org domain is managed by a US company seems like a weak dodge by US officials at the urging of industry.
But, of course, there are serious questions about the wider impact of this decision. Back in October, we highlighted how Libya had begun seizing .ly domains, because they felt that the content on those domains violated Sharia Law.
When the US is following in the footsteps of Libya for foreign censorship, there's a serious problem.
Of course, after the seizure of the .ly domains, many people started to move away from those domains (including presidential hopeful Mitt Romney, who dumped his Mitt.ly domain). It will be interesting to see if more companies (especially foreign ones) start moving away from .com and .org for just this reason. When the US government suddenly decides that it can simply take your domain name with no warning, no due process, no adversarial hearing and no regards to whether or not the site is actually legal in the country it's targeting, that seems like a pretty clear warning sign that it's time to find a safer domain home. If I were a US domain register or registrar, I'd be pretty pissed off at Homeland Security for promoting the fact that the US government has no problem censoring websites it doesn't like. It's only going to serve to drive people away, and perhaps open up a huge opportunity for a new TLD to become a standard from a country that really believes in due process and free speech.
It appears that Homeland Security's Immigration and Customs Enforcement (ICE) division, and their incredibly sloppy domain seizure operations, have moved on to the next phase -- as was promised by both ICE boss, John Morton, and IP Enforcement Coordinator, Victoria Espinel. The timing on this one is particularly bizarre -- and politically stupid.
That's because the the domain seizure is for the Spanish streaming site Rojadirecta. Yes, ICE seized the domain name of a foreign company. And it gets worse. Rojadirecta is not just some fly-by-night operation run out of someone's basement or something. It's run by a legitimate company in Spain, and the site's legality has been tested in the Spanish courts... and the site was declared legal. The court noted that since Rojadirecta does not host any material itself, it does not infringe.
So, a full-on trial and legal process that took three years in a foreign country, and involved a series of appeals leading to a final judgment.... all totally ignored by a bunch of US customs agents.
You might think some folks in Spain would have a pretty serious issue with this move.
And the timing is especially ridiculous, given that the US has been pushing very, very hard for Spain to implement a new copyright law, driven in large part by Hollywood. With many in Spain already furious about US meddling in their own copyright laws, I can't imagine that having US customs agents reaching across the Atlantic to just out and out seize a Spanish company's domain name is going to go over very well.
Imagine if a Spanish law enforcement agency did that to a US company? How quickly would we see American politicians screaming about this "international incident." Yet, here we have Homeland Security reaching out to seize the domain name of a foreign company that has been explicitly declared legal, after going through a lengthy trial and appeals process in its native country. And, in typical Homeland Security fashion, no one bothered to contact the company and let them know or express its concerns. Instead, it just seized the domain.
I would imagine that doing so may upset Spanish citizenry even more than the attempt to rewrite copyright laws in Hollywood's favor.
And of course, it appears that, despite the serious questions raised about the last domain seizures, in particular of blogs with substantial non-infringing uses, ICE has also seized another blog, called StrikeGently, which appears to have included lots of other content. Yes, it did also include some links to downloads hosted on other sites, but did not host any content directly itself, and appears to have included plenty of other content beyond the links to downloads. Once again, no one is saying that the site is clearly legal. It may, in fact, be liable for inducement. However, that's something that's supposed to be determined at trial, and not after the government steps in with no notice whatsoever and takes the domain name away.
Apparently, Homeland Security and ICE have decided that the mistakes it made last time are so minor that it will repeat them again and again, even if it involves shutting down protected speech and interfering in international relations.
We're still waiting for a good explanation of why Homeland Security's Immigration and Customs Enforcement group is involved in internet copyright issues that have nothing to do with either immigration or customs enforcement, but it appears that those sharp border patrol folks are really doing their job protecting Americans from... chocolate toy eggs. Tim Good alerted us to this story of how the US Border Patrol did a random search on a Canadian woman's car as she crossed the border into Minnesota, and told her she had illegal contraband in her car in the form of a Kinder Surprise Egg. I'd never heard of this before, but apparently it's a confection with a chocolate shell and a toy inside.
According to US border patrol, they told her that it was a choking hazard and on the list of "prohibited items" in the US, though, as the folks at Reason (reasonably) point out:
A gander at the image... suggests you'd have to be awfully intent on getting that chocolate into your system not to notice the huge, bright yellow plastic capsule inside.
Take a look for yourself:
Of course, that's not the end of the story, either. After leaving the chocolate egg and toy to the US border patrol agents, and figuring it was just a nuisance, the woman was somewhat surprised to receive a letter a week later, asking her if she was planning to come back to retrieve the egg. They noted if she did not, and she wanted to fight the seizure of the egg, she would need to pay the US government $250 in "storage costs" for the egg.
