Homeland Security Finally Admits To Latest Domain Seizures; Arrests Guy For Selling Unauthorized 'Sons Of Anarchy' T-Shirts

from the feeling-safer? dept

A few weeks back, we wrote about a bunch of new domain seizures by Homeland Security's ICE division, and wondered why ICE hadn't said anything publicly about them. Well, it's finally put out an announcement about these domain seizures, including the fact that it had the operator of one site arrested for selling counterfeit Sons of Anarchy apparel. That guy, Ryan Breen, now faces 10 years in jail and fines up to $2 million. It seems there's a fair bit of irony in the fact that DHS/ICE is so thrilled about busting a guy selling apparel for a TV show that plays up an outlaw motorcycle gang known for its illegal weapons trafficking. Let's celebrate the gun runners... and punish the guy who made some t-shirts with 10 years in jail, huh? I have to admit that I'd much rather see Homeland Security and ICE actually focus on protecting the country, rather than some guy in upstate NY selling some t-shirts to fans of a TV show. And, of course, once again, it appears that most of the domains seized were taken without any notice, without any opportunity for the domain holders to respond. ICE has made it abundantly clear that they don't care about due process or the First Amendment in seizing domains, and frankly I find that a lot more troubling than some guy selling t-shirts online.

Filed Under: counterfeiting, domain seizures, homeland security, ice, trademark

Justice Department Practicing Mix-And-Match, Sleight-Of-Hand Law In Seizure Case

from the pay-no-attention-to-that-law-behind-the-curtain dept

We've obviously been following with great interest the Federal Government's arguments for why it's allowed to seize domains under the "Operation In Our Sites" banner. The "main event" in the legality of such seizures, for now, is the fight between the Justice Department and the Spanish company Puerto 80, who runs the site Rojadirecta. As you may recall, Homeland Security's ICE division seized two Rojadirecta domain names back in January, despite the fact that the company had been declared perfectly legal in its home country. The Justice Department then did everything it could to stall any of the owners of seized sites from protesting the seizures, often threatening the site owners that if they filed a protest, then criminal charges would be filed against the sites (and, yes, in case you hadn't realized it, that means that all of the sites were seized without any charges being filed).

Homeland Security and the Justice Department are well aware that site owners are challenging the legality of the seizure of five of the domains, but so far only Puerto 80/Rojadirecta has officially gone to court to demand the return of its domains. Almost immediately after Puerto 80 petitioned the court to get its domain back, the Justice Department (as per its threats) officially filed charges against the site. Earlier this month (after stalling once again and getting the court to grant it a delay), the Justice Department finally filed its response to the petition by Puerto 80, which we thought was incredibly weak. Basically, the US Attorneys argued that stifling speech isn't considered "substantial harm" in their eyes, which is a pretty stunning interpretation of the First Amendment.

Puerto 80's lawyers wasted almost no time at all in replying to the Justice Department, and you can read their full filing below. It's absolutely worth reading because it so completely rips to shreds the government's arguments here. I want to go through a few of the key points from the filing, but wanted to call out one huge hole in the government's argument, which is briefly mentioned in Puerto 80's filing, but which appears to be a key point in the overall argument (and which has also been discussed in our comments): the government has completely failed to show any evidence of criminal copyright infringement. Since it can't do that (because it's not clear that any happened), it simply tries to conflate multiple separate parties to pretend there's criminal copyright infringement.

The argument is a little complex, so I'll try to lay it out simply:

1. For criminal copyright infringement to have occurred, the government has to show that copyright infringement occurred with certain key factors described in Section 506 of US copyright code. The key factors: it has to be willful, it has to be "for purposes of commercial advantage or private financial gain," it has to involve reproduction or distribution of works valued over $1,000 or it has to be on works that are "being prepared" for commercial distribution, but which haven't been released yet (basically leaks). The last factor doesn't apply to Rojadirecta as far as I can tell, because it's accused of streaming sports events that are being shown on TV, meaning that it's not leaking them before they're available.
2. The "willful" part is going to be difficult to show. The government claims that Puerto 80 was well aware that it was receiving complaints from copyright holders. But, as the law itself states, simply showing evidence of infringement is not sufficient to make it willful. Even worse, of course, are the two rulings in Spain that Rojadirecta was legal. Now, supporters of the seizures love to point out that this is US copyright law we're dealing with, and Spanish copyright law means nothing. That's true for the overall charges... but for proving "willfulness," it's still a big issue that puts a major dent in the US's case.
3. But, the much, much bigger problem for the government is in those other factors. It knows that Rojadirecta did not reproduce or distribute any works itself. It merely has users who link to such works. Thus, it's pretty clear that there's no direct infringement -- a point that the government effectively concedes in its filing against the petition. So, instead, it seems to be hanging its hat on the claim of contributory infringement. Since there is no contributory criminal copyright infringement in the law, the Justice Department is trying to claim that it still works under an aiding and abetting theory.
4. There are serious problems for the government in making that stick. Here's the biggest one: just what crime is the government accusing Puerto 80 of aiding and abetting? For there to be aiding and abetting there needs to be criminal copyright infringement done by someone else "aided and abetted" by Rojadirecta. So, here's the problem. Who is that "someone else" that Rojadirecta aided and abetted? The Justice Department will claim that its Rojadirecta's users. But go back up to step 1 above. It's unlikely that any of Rojadirecta's users actually meet the criteria ("for purposes of commercial advantage or private financial gain") necessary to make their use criminal. Their use may still be infringing, but not criminally infringing. Thus, there is no evidence of a crime committed by someone else that Rojadirecta could have aided and abetted. Certainly, the government doesn't show any such evidence.
5. Basically, the government seems to be conflating two separate parties to try to create criminal copyright infringement out of thin air. That is, it may get Rojadirecta on the first factor, but can't on the second factor. It might be able to get some users on the second factor, but can't on the first factor. So, basically, the government simply doesn't have the goods to prove criminal copyright infringement, and instead is trying to wave its hands in the air really quickly, in hopes that the court doesn't notice this. It seems to think that if it talks about the users' potential civil infringement and quickly switches to Rojadirecta making money from providing a service, it can pretend it's met the factors for criminal infringement... even though it hasn't.

In fact, as part of that hand-waving to distract the court, it seems that the Justice Department is either so incompetent or so desperate that it cited a case that didn't actually say what they claimed it said. Instead, it falsely claimed one case said something when the quote was actually from another case... whose facts were totally different:

The government does not address those arguments or the authority Puerto 80 cites, and instead makes the remarkable suggestion that Puerto 80's failure to "stop an infringing copy from being distributed worldwide constitutes substantial participation in" distribution of copyrighted material. See Opp'n at 21. That is not the law. In fact, it is not the law according to the authority to which the government attributes it—the quote, purportedly from Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991), is not found in Cubby. Rather, it comes from Religious Tech'y Ctr. v. Netcom On-Line Communication Svcs Inc., 907 F. Supp. 1361, 1374 (N.D. Cal. 1995), in which the court found that a material issue of fact existed on the question of whether an online bulletin board system operator was contributorily liable for distributing material which was hosted on its server. The government makes no attempt to explain how the facts of Netcom align with the instant facts, and, indeed, they do not. But Puerto 80 need not belabor the point, because it is irrelevant. That is because even if Puerto 80 could be held liable for contributory infringement, such liability would not support criminal charges.

Nice work, Justice Department... citing the wrong case. Whether you believe it's incompetence or deception, it looks bad either way.

On top of that, the government plays up the whole aiding and abetting claim in its response to the petition, but as Puerto 80 points out in the latest filing: the government's actual charges in its forfeiture case against Puerto 80 don't include aiding and abetting because forfeiture is not allowed for aiding and abetting:

... the domain names were not seized based on an allegation of aiding and abetting, and the government chose not to bring those charges in its forfetiyre complaint. Even if it had, those charges would not support forfeiture of the domain names because the forfeiture statute does not permit seizure based on those crimes. See 18 U.S.C. § 2323 (permitting seizure based on alleged violations of specific statutes, of which 18 U.S.C. §§ 2 and 371 are not among).

In other words... the government really seems to be trying to completely remake the law here, pretending it says all sorts of stuff it does not. And in order to do that, it basically keeps conflating different parties and switching back and forth in a sort of legalistic sleight of hand. One hopes the courts are not fooled by these rather deceitful tactics.

Now, the government has argued that most of these arguments belong in the fight over the forfeiture, rather than in this petition to return the domain, but again, Puerto 80 points out that this makes no sense, and is the whole reason why the concept of "prior restraint" is an issue. The government isn't supposed to be able to stifle speech and then say "we'll figure it all out at trial later...." Thus, Puerto 80 argues, the only proper thing to do is to return the domains, and then get on to the meat of the problems of the government's entire rationale for the seizures and forfeiture attempts.

The big question now is whether or not the courts are confused by the government's hand-waving, distractions and false citations. Or if it recognizes the underlying problems with the government's entire case. Hopefully, we'll find out soon.

Filed Under: aiding and abetting, copyright, domain seizures, ice, infringement, justice department
Companies: puerto 80, rojadirecta

Why Hasn't ICE Been Talking About Its Latest Domain Seizures?

from the the-new-quiet-strategy? dept

In the last few weeks, Homeland Security's ICE division has once again been seizing servers. TorrentFreak noticed a group of five domains seized recently, and SD pointed us to details of five more domains seized a little over a week earlier. From the domain names, it's clear that ICE is mostly focusing on sites that sell counterfeit goods right now, which is slightly less controversial. Pretty much all of the names (e.g. lacosteshoesmall.com and newerahatss.com) involve some sort of brand name. The site owners are unlikely to protest because they're likely engaged in trademark infringement. However, that doesn't make the legality of simply seizing such domains prior to an adversarial hearing any less questionable. It's just that ICE is doing the same thing that police have been known to do with drug dealers: seize stuff knowing that the people they're taking from don't want to go to court. It basically becomes a license for law enforcement to steal.

Of course, it's highly questionable how effective any of this. Maybe it makes someone sitting in an ICE office excited, but the counterfeiters are still counterfeiting and still selling their goods. Hiding their website doesn't do much to stop anything. But perhaps a bigger question is why ICE isn't hyping up these seizures? Perhaps it's trying to avoid all of the backlash when it screws up?

Filed Under: counterfeiting, domain seizures, homeland security, ice, trademark

How The US Gov't's Bogus Extradition Attempt Of Richard O'Dwyer Is Destroying Lives For No Reason

from the are-these-people-proud-of-themselves? dept

We've been covering the absolutely ridiculous attempt by the US government (mainly ICE and the Justice Department) to extradite former TVShack admin Richard O'Dwyer from the UK to the US to face criminal copyright charges. This is absolutely shameful for a variety of reasons, including the fact that sites quite similar to O'Dwyer's have been found to be perfectly legal in the UK, and the US appears to be using highly dubious claims in its reasoning for extradition. Even worse, the Justice Department and ICE are clamped up tight on this one, refusing to make any on-the-record comments about this attempt to take a kid, who doesn't appear to have done anything against the law, and drag him across the ocean against his will to put him on trial for criminal charges.

TorrentFreak has the (admittedly, extremely biased) thoughts from O'Dwyer's mother on the whole situation. It's really heart-breaking to think that the US government can be so actively destroying this family, despite an incredibly weak case.

As the ICE agents left they shook his hand and said “Don’t worry Richard you won’t be going to America”. Actually “going to America” had never entered Richard’s head! The same day Richard closed down the website himself.

On attending with Richard to answer bail in May this year when we expected he would either be charged or questioned further, he was told by the Police that the criminal investigation in the UK had been dropped. He was then told that he was going to be rearrested as they now had a Warrant for his Extradition to the US!

[....]

I am most concerned about Richard being in jail in America with no access to his family or friends. Given the current economic climate along with the distance it would not be feasible for anyone to be able to visit him if he were in jail in the US. The idea of having to spend around £1500 or more in air fares and hotels etc. in order to visit my son for one hour in a US jail is ridiculous and prohibitive. This is in total breach of his Human Rights, rights which other non – British subjects are afforded in the UK even some who have allegedly committed serious crimes

[....]

From a personal perspective this trauma has totally taken over my life. I hold a responsible senior position as a Specialist Nurse for Terminally ill children. My job requires me to advise other professionals and parents regarding strong medications for children.

I need to concentrate on my job and to be able to function at a high level. Since this nightmare came into our family I have been unable to work due to being off sick due to the stress. My concentration and level of functioning have been greatly affected to the degree that I would not be safe to do my job.

You really should read the whole thing.

And, really, who is this helping? At all? TVShack didn't host any of the content. It's still very much out there, and tons of others are linking to that very same content, much of which you can find with a simple Google search. So destroying this family doesn't stop or even slow down the infringement. It does raise serious questions about the US/UK extradition procedures, which seem to (contrary to the official claims) totally ignore the fact that similar sites have been found legal in the UK already.

When this case first came to light, I reached out to folks at both the Justice Department and Homeland Security to get comments, and both refused, pointing me only to press releases about domain seizures. Frankly, anyone involved in this case should be sickened and ashamed of themselves right now. This is not some criminal mastermind. This was a kid who built a simple website, which didn't host any infringing content, and is now being railroaded and destroyed by a system because a few folks in Hollywood say so. The fact that ICE now doesn't even try to hide the fact that it's doing this at the behest of a few entertainment industry giants, who don't want to adapt to the changing marketplace, just makes the whole thing even more disgusting.

This has nothing to do with protecting "rightsholders." Such rightsholders could go after those uploading content themselves if they wanted to. This seems to be a case where the existing administration is trying to destroy this family for no good reason at all, other than Hollywood told them to do it. Sickening.

Filed Under: copyright, doj, extradition, ice, jurisdiction, richard o'dwyer

Homeland Security Working Hard To Make Sure No One Wants To Use .com Or .net Domains

from the are-they-insane? dept

Remember Erik Barnett? He's the deputy director of Homeland Security's Immigration and Customs Enforcement (ICE) unit, who seems to have a way with words. He's the guy who admitted that Homeland Security was censoring websites because entertainment companies asked them to. He's also the guy who lied about whether or not anyone was challenging domain seizures when he knew those challenges were underway.

Now he's out trying to defend the ridiculously short-sighted decision by the US government try to extradite Richard O'Dwyer from the UK, for running the site TVshack, despite it almost certainly being legal in the UK. According to Barnett, none of that seems to matter, because O'Dwyer was using a .net.

"The jurisdiction we have over these sites right now really is the use of the domain name registry system in the United States. That's the key."

The only necessary "nexus to the US" is a .com or .net web address for which Verisign acts as the official registry operator, he said.

That's the key, but it's also ridiculous and stupidly self-damaging for the US. On a jurisdictional basis, there are a variety of different factors that people use to determine what the proper jurisdiction is, and relying solely on the registry, thus making all .com and .net (among other) domains US property, is simply ridiculous. Almost anyone thinking about it would realize that if a site is run by someone in the UK and hosted on servers in the UK, it's silly and counter-factual to claim that it's really US property.

Of course, the end result of this will be to drive more and more foreigners away from using US domain names. None of this will do anything to stop infringement, which Barnett seems to think is his job. But it will harm American companies (the ones he claims he's trying to help) by getting foreign internet users to stay away from them due to the liability that some hotshot in the Justice Department suddenly decides he or she wants to pull someone from their home and ship them to the US to face criminal charges on something that may have been completely legal where they're from.

Filed Under: domains, erik barnett, extradition, homeland security, ice, nexus

Senator Leahy Praises US Gov't Censorship Of Websites As ICE Takes Another Victory Lap

from the they-live-in-an-alternate-reality dept

It really would be kind of funny to watch the US government congratulate itself for censorship of websites if it wasn't just kind of sad. At a Senate Judiciary committee hearing on intellectual property issues, Senator Patrick Leahy (top 3 campaign contribution sources: lawyers, entertainment industry, lobbyists -- you can't make this stuff up) praised administration officials for censoring websites based on questionable accusations from an entertainment industry who seems to think that their own content creators are running "pirate" websites.

Of course, Leahy apparently doesn't recognize the irony of condemning internet censorship in other countries while praising it at home when it benefits his biggest campaign contributors.

The same hearing gave ICE assistant director Erik Barnett one more chance to declare victory, though I note with some amusement that the text of Barnett's speech this time leaves out the bogus claim that no sites are challenging the seizures. Apparently he's realized that some people might call him on it when he blatantly misrepresents reality.

Either way, none of this dog and pony show is much of a surprise. You certainly wouldn't expect Senator Leahy to call one of the people who had their sites illegally seized to hear their side of the story. I mean, that might be embarrassing to actually hear that there's more than one side to this. He might have to hear about how the content creators themselves sent the content in question to these sites, and how the ICE affidavit to seize them misstated the facts of whether or not the content was infringing. He might have to hear how ICE didn't even ask the actual copyright holders, in most cases. He might have to hear how ICE doesn't seem to understand the technology, and doesn't seem to understand the difference between linking and distribution. He doesn't have to hear about how hardworking people who helped promote new artists and build their careers now live in fear of their own government. He doesn't have to hear about how these people are afraid to speak out, because the Justice Department has told them that if they do, they may face criminal charges.

No, it's easier to put on a show and pat yourself on the back for censoring those people and pretend that you've done something productive.

Filed Under: censorship, copyright, dhs, domain seizures, erik barnett, free speech, ice, patrick leahy, victoria espinel

MPAA Directly Lobbies Law Enforcement To Be Its Own Private Police Force

from the and-that's-what-you-get dept

For years, we've discussed how questionable it is that federal law enforcement, including the Justice Department and Homeland Security, often acts as the private police force of the entertainment industry. At times there's been a bit of a revolving door, with the RIAA/MPAA hiring former federal law enforcement officials to head up their "anti-piracy" efforts, and the existing federal groups sometimes seem to return the favor by taking on cases that clearly should be civil matters between the private companies in the entertainment business and those it feels infringed on their rights.

Over the last few years, the fact that the feds have effectively been working as the entertainment industry's private police force has grown more and more obvious. No one from Homeland Security seems willing to explain (and trust me, I've asked multiple times) why it is that when ICE did its domain seizures, it relied solely on claims from the industry and (even more ridiculous) announced the first round of seizures from Disney headquarters. Can you imagine how people would react if the FTC announced it was filing antitrust charges against Google... from Microsoft's offices? Or if the FCC announced it was blocking the AT&T-T-Mobile merger from Sprint's offices? Such scenarios seem preposterous, but ICE doesn't seem to recognize the clear conflict of interest in acting as the private police force for an industry, rather than actually doing its job.

Perhaps part of that is because the entertainment industry is spending a ton of money lobbying law enforcement agencies directly. Most of the time when you think about lobbying activities, you think about talking to politicians to try to get them to pass certain laws, or talking to regulators to have them adjust or change certain rules and regulations. You don't tend to think of lobbying law enforcement directly in order to convince them to do your private bidding. But, the MPAA does.

According to a disclosure report, the MPAA spent $400,000 lobbying a wide range of US government departments in the first quarter of 2011 including the FBI, Department of Justice, Department of Homeland Security, ICE and the Vice President’s Office. Issues on the table include so-called “rogue sites” including RapidShare, streaming, graduated response (3 strikes) and domain seizures.

There are no real surprises in the content covered. It's the same stuff the MPAA has been pushing for a while now. But the fact that they're directly lobbying the FBI, the Justice Department, Homeland Security and ICE should raise some eyebrows. Law enforcement should not be influenced by the desires of private companies -- especially ones with a long history of failing to adapt to changing technologies and trying to get those technologies declared illegal. Imagine if, rather than a civil lawsuit, when the VCR was introduced, the movie industry could have just had the FBI declare the things illegal?

Filed Under: copyright, criminal, doj, fbi, homeland security, ice, joe biden, law enforcement, lobbying
Companies: mpaa

Why Is The Justice Department Pretending US Copyright Laws Apply In The UK?

from the insanity dept

We already mentioned the attempt by the US to extradite Richard O'Dwyer, a UK student who ran TVShack.net and TVShack.cc, both of which were seized by ICE. Unfortunately, most of the press reports out of the UK lacked details, and I wasn't even entirely sure that an actual attempt at extradition had been made, or if there was just fear on the part of the O'Dwyer family. After some digging, however, it appears that this is absolutely the case. The Justice Department, out of the Southern District of NY -- the same DOJ offices that have been involved in the ICE seizures -- and ICE, via the US embassy in London, made the request to extradite O'Dwyer. I've now heard that from three separate sources. I also called the folks in the press office at the US Attorneys' office in SDNY to see if they were willing to respond to questions about the attempted extradition, and the answer is they don't want to talk about it at all. I believe the two quotes were "there is nothing in the public record we can comment on" and "there is no additional guidance we can give you," though they did offer to send me the press release they sent out when they helped seize the TVShack domains. Helpful.

Now, let's be entirely clear here. Dwyer has not violated UK law. Pretty much everyone agrees on this. In our initial post, we discussed a few similar cases in the UK that showed such site administrators were not liable. UK legal experts have been saying that what O'Dwyer did is legal in the UK as it matches up almost entirely with previous cases where people doing nearly identical things were found to have not violated the law.

So this is a massive jurisdictional and sovereign disaster waiting to happen. Basically, the US appears to be claiming that if you do anything on the internet, you're subject to US laws. That's crazy and is going to come back to haunt US law enforcement. Do they not realize that this is the same thing that other countries have tried to do to US citizens? The US even passed a law, the SPEECH Act, to make it clear that US citizens were not subject to the liability of other national laws, just because such things happen on the internet. To then turn around and pretend the opposite is true for everyone else is just massive hypocrisy.

Separate from all that, it's highly questionable if O'Dwyer is even violating US criminal copyright law, because there is no such thing as contributory criminal infringement (there is for civil copyright law, but it's nowhere to be found in criminal law).

Effectively, it appears that the US government wants to seize someone and drag them across the ocean to face federal charges for doing something that was (a) perfectly legal in his home country and (b) probably legal in the US. Do they not see how that might create some issues?

Honestly, this seems like the latest in a long series of massive screwups by ICE and the DOJ in the Southern District of NY, who appear to have rushed into the whole "copyright enforcement online" arena without bothering to understand the technical, legal and political issues involved. What they've done here is create an international incident, for which there will undoubtedly be ramifications. I've heard that while O'Dwyer is fighting the extradition, many suggest that it's effectively a done deal, that the UK government has agreed to the extradition without any scrutiny of the actual charges. I'm embarrassed that my country would make such a request in the first place, and shocked that the UK would merrily go along with it, sans scrutiny. It's gone beyond exporting our IP laws through treaties and diplomatic pressure to the absolutely ridiculous stance that the US government can (1) make up their version of copyright law and then (2) automatically apply those made up laws around the globe.

Filed Under: copyright, doj, extradition, ice, jurisdiction, richard o'dwyer

ICE Stalling On More FOIA Requests Concerning Domain Name Seizures

from the and-of-course dept

We recently noted that Homeland Security's ICE group appeared to be stalling in responding to a Freedom of Information Act (FOIA) request from Michael Robertson's NakedGovernment. It turns out that's not the only such request it's been stalling on. The folks over at Muckrock (who helped us with our own FOIA requests), alert us to the news that Aaron Swartz, the director of Demand Progress (the organization that the MPAA has been trying to smear with false accusations), filed a similar FOIA request at about the same time. There were apparently some issues with it, but those issues were resolved in February... and since then, not a peep out of ICE.

Filed Under: dhs, domain seizures, foia, ice, stalling
Companies: demand progress

Rojadirecta Sues US Government, Homeland Security & ICE Over Domain Seizure

from the with-top-notch-legal-support dept

This morning, we wrote about the list of sites that ICE knew was challenging its domain seizures, and some people complained that there still were no details. There's been a lot happening behind the scenes, but the first bit of public information is now available, as the company behind Rojadirecta, Puerto80 has officially filed suit against the US government, demanding the return of its domains. Not only that, but it's brought on some top notch legal talent to help them. The company is represented by Ragesh Tangri and Mark Lemley from Durie Tangri. If you're at all familiar with intellectual property law, you know who Lemley is, and know the level of respect he gets within intellectual property circles. In fact, it's interesting to note that one of Lemley's papers is one that we've seen frequently cited by those who believe the domain seizures are legal. The fact that he's arguing on the other side seems pretty telling.

As for the filing itself, it details the stalling by the US government that we pointed out last month:

Contrary to the grounds on which the domain names were seized, the Rojadirecta site is not violating copyright law, let alone criminal copyright law. Rojadirecta explained this to the government when, on February 3, 2011, it sent ICE and the Department of Justice a letter requesting immediate return of the subject domain names pursuant to 18 U.S.C. § 983(f). Following that letter, counsel for Puerto 80 Projects, S.L.U. (“Puerto 80” or “Petitioner”), the company which owns the sites, repeatedly tried to discuss the seizure with the government, but was unable to engage with the government until it notified the U.S. Attorney’s Office of its intent to seek a temporary restraining order and file a petition for immediate return of the seized domain names. It was not until then that Puerto 80 was able to have a substantive conversation with the appropriate officials. Hoping to avoid burdening the court, Puerto 80 held off filing the instant petition pending the outcome of those negotiations. On May 26, 2011, the government informed counsel for Puerto 80 that the only acceptable “compromise” would entail Puerto 80 prohibiting its users from linking to any U.S. content anywhere on its sites. Because this “solution” would prohibit Puerto 80 from engaging in lawful acts not prohibited by copyright law, Puerto 80 chose instead to challenge the seizure in court.

The filing notes that it is asking the court to speed up the process, as it tried to be patient, but the delays in reclaiming the domain are harming Puerto 80's business. It also notes that "in hopes of avoiding having its property tied up in lengthy forfeiture proceedings, Puerto 80 decided to engage in good faith negotiations with the government and held off filing the instant petition pending the outcome of those discussions." It then lists out all of the detailed attempts to get the domains back. It involves multiple attempts by Puerto 80's lawyers to discuss this with the Justice Department, and as we heard from pretty much all the sites in this process, talking to anyone substantial proved to be quite difficult. It also notes that "the government attempted to dissuade Puerto 80 from filing anything in district court." That supports our contention that the government really wanted to avoid a legal challenge...

As for the specific legal arguments, it starts out by pointing out that under the rules for seized property, there are certain conditions under which the seized property should be returned -- with a key one being that "the property will be available at the time of the trial." As we've discussed at length, the key official reason for seizures is to preserve evidence. That's why this is a key element here: if the evidence will be there, there is no reason for the seizure.

Then out come the big guns, starting with the claim (as we've suggested in the past) that the seizure represents unlawful prior restraint (i.e., a violation of the First Amendment). Here's a big chunk of the filing, included in its entirety (minus footnotes), because it's quite interesting:

The seizure imposes another hardship on Puerto 80, in that it constitutes an invalid prior restraint and suppresses its users’ and readers’ protected First Amendment activities. See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (“[W]hile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause . . . ., it is otherwise when materials presumptively protected by the First Amendment are involved.”). See also Maryland v. Macon, 472 U.S. 463, 468 (1985) (“The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, and requires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such circumstances.”) (internal citation omitted); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, n.5 (1979) (noting that the First Amendment imposes special constraints on searches for, and seizures of, presumptively protected materials). In Fort Wayne, state and local officials (respondents) filed a civil action pursuant to Indiana’s RICO laws, alleging that the defendant bookstores had engaged in a pattern of racketeering activity by repeatedly violating Indiana’s obscenity laws. 489 U.S. at 50-51. Prior to trial, respondents petitioned for, and the trial court granted, immediate seizure of the bookstores pursuant to a state law that permitted courts to issue seizure orders “upon a showing of probable cause to believe that a violation of [the State’s RICO law] involving the property in question has occurred.” Id. at 51. On appeal, the Supreme Court held that the pretrial seizure order was unconstitutional, stating that “mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.” Id. at 66. As in Fort Wayne, the government here has seized an entire business and effectively suppressed all of the expressive content hosted on it, including political discussions, commentary, and criticism by the site’s users—without it being determined whether the seizure was “actually warranted” under the relevant statutes. Id. at 67.

In Center for Democracy & Technology v. Pappert, 337 F. Supp. 2d 606, 619 (E.D. Pa. 2004), the Eastern District of Pennsylvania struck down, on First Amendment grounds, a Pennsylvania statute that permitted the state’s Attorney General or a district attorney to seek a court order requiring an Internet Service Provider (“ISP”) to “remove or disable items residing on or accessible through” the ISP’s service upon a showing of probable cause that the item constituted child pornography. The district court found that the statute imposed an unconstitutional prior restraint on speech. It concluded that under Fort Wayne Books and Bantam Books v. Sullivan, 372 U.S. 58 (1963), a court must “make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation.” Pappert, 337 F. Supp. 2d at 657 (emphasis added). The court further noted that the state statute “allow[ed] for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past.” Id.

In the instant case, the government effectively shut down an entire website, suppressing all of the speech hosted on it, based on an assertion that there was probable cause to believe that some of the material linked to by the website (though not found on the website itself) might be infringing. The site’s owner was not provided any advance notice, nor was he provided the opportunity to contest the seizure before (or, for that matter, shortly after) the government shut down the site. Nor were the site’s users afforded any notice or opportunity to contest the seizure. Because case law is clear that “mere probable cause to believe a legal violation has transpired is not adequate to remove [protected material] from circulation,” Fort Wayne, 489 U.S. at 66, the seizure of the expressive materials in this case violates the First Amendment. See also Pappert, 337 F. Supp. 2d at 657 (finding that a procedure that permits a judge to make an ex parte finding of probable cause that material is child pornography, with no opportunity for the content publisher to receive notice or be heard, violates the First Amendment). This First Amendment deprivation extends not just to registered users of Rojadirecta, but also to anyone wishing to visit the website. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (“[T]he protection afforded is to the communication, to its source and to its recipients both.”); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (“It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences . . . . That right may not constitutionally be abridged . . . .”).

If you want the key bit, it's from that third paragraph above. One of the footnotes also points out (as we've noted elsewhere) that the government appears to have made up, whole cloth, the idea that linking to infringing content can be seen as criminal infringement:

Indeed, several courts have held that the act of indexing and linking to copyrighted material— which was the government’s basis for seizing the domain names—is not direct or indirect copyright infringement. See Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006); see also Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654 HLH(BQRX), 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (finding that hyperlinking to other sites does not constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, (SHS) 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n.12 (N.D. Cal. 2004) (“Hyperlinking per se does not constitute direct copyright infringement because there is no copying.”).

Finally, the filing points out that the domain names did not meet the conditions set out under US law to qualify for seizure in the first place, saying that it is not contraband, evidence, "particularly suited for illegal activities" or "likely to be used to commit additional criminal acts." That last one, I assume, is the one that most supporters of the seizures will take issue with, but, the argument is again laid out in tremendous detail:

Puerto 80 does not host any infringing material on the websites which operate under the subject domain names... In the same way a search engine or other site which aggregates links to existing material on the Internet, Rojadirecta provides an index of links to streams of sporting events that can already be found on the Internet through a search for those sites or simply by typing the URL for the site directly. Id. Such activity does not constitute direct copyright infringement, much less criminal infringement. See supra, at note 8. Indeed, United States Senator Ron Wyden (D-Or) made this point in a letter he wrote to ICE Director John Morton and Attorney General Holder expressing concern over the government’s seizure of the subject domain names....

Puerto 80’s operation of the Rojadirecta site does not constitute contributory infringement because the subject domain names are capable of—and are, in fact, used for— substantial non-infringing uses. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, reh’g denied, 465 U.S. 1112 (1984); Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481, 517-18 (S.D.N.Y. 2010) (summary judgment inappropriate where material fact existed as to whether file-sharing program, which was “used overwhelmingly for infringement,” is “capable of substantial non-infringing uses.”).

Nor is Rojadirecta a site devoted simply to linking to such streams. In addition to providing a forum for discussion on sports, politics, and a variety of other topics, the Rojadirecta site enables users to post links to authorized sports broadcasts. For example, on Saturday, February 12, 2011, the Rojadirecta site (hosted on the rojadirecta.es domain name) provided a link to “9:30am Hockey (NHL): Los Angeles – Washington.”... Clicking on this link opened a new window for the Yahoo! sports website for the National Hockey League, and provided a live stream of the match between the Los Angeles Kings and Washington Capitals. Id.

Nor does Puerto 80’s operation of the Rojadirecta site constitute vicarious liability because it does not have “a right and ability to supervise that coalesce[s] with an obvious and direct financial interest in the exploitation of copyrighted materials.” Softel, Inc. v. Dragon Med. & Sci. Commc’ns Inc., 118 F.3d 955, 971 (2d Cir. 1997) (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (emphasis added)). Puerto 80 does not receive any revenue that is derived from specific content hosted on, or streamed by, the sites to which it links.... In other words, Puerto 80 does not receive any revenue from any site to which a user can link from the subject domain names based upon the content of that site. Id. To the extent there is any site to which Rojadirecta links that contains infringing material, Puerto 80 receives no specific financial benefit from a user clicking through to that site and viewing such content.... Because Puerto 80’s revenues are not tied to whether or not infringing material is linked to or accessed, the government cannot show that Puerto 80 has a “direct financial interest in the exploitation of copyrighted materials” which “coalesce[s] with” any right or ability to supervise what is linked to on the site. See Artists Music, Inc. v. Reed Publ’g (USA), Inc., Nos. 93 civ. 3428(JFK), 73163, 1994 WL 191643, at *6 (S.D.N.Y. May 17, 1994) (direct financial benefit not established where defendant leased space at a trade show for a fixed fee to exhibitors who played infringing music, but defendant’s revenues were not dependant on whether exhibitors actually played music or what they played); Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 521 (S.D.N.Y. 2010) (in DMCA safe-harbor context, “financial benefit directly attributable to the infringing activity” not established “where the infringer makes the same kind of payment as non-infringing users of the provider’s service”) (quoting Senate Judiciary Committee Report and the House Committee on Commerce Report, H.R. Rep. No. 105-551, pt. 2 (1998)).

Furthermore, the filing points out that the government totally failed to meet the requirements to show criminal copyright infringement, and notes that the government cannot show that Rojadirecta meets those requirements.

The full filing is embedded below, but I've pulled out most of the key points above... Earlier this morning we had supporters of the domain seizures insist that no one was actually filing lawsuits in the US over this. It will be interesting to see how they respond to this particular filing.

Filed Under: copyright, criminal copyright infringement, dhs, doj, domain seizures, ice, mark lemley, rojadirecta, seizures
Companies: puerto 80