By Janelle H.
In an effort to curb copyright infringement, the U.S. government through the Department of Homeland Security (hereafter DHS) is starting to seize domain names from Web site owners using in rem warrants. DHS is then repurposing many of the sites to display anti-piracy public service announcements. Such seizure, however, might be illegal. Under this new seizure process the government is not required to prove its case of direct, willful copyright infringement, nor give owners of the domain name due process. This seizure may also be an unconstitutional prior restraint of free speech.
In Puerto 80 Projects v. U.S. Dept. Homeland Security, ICE (S.D.N.Y. Aug. 4, 2011), U.S. customs agents seized the domain names Rojadirecta.com and Rojadirecta.org. The sites were suspected of being pirate internet sites used to direct users via links to illegal Web broadcasts of live sporting events and Pay-Per-View shows which violated copyright law. There was, however, no directly infringing material on Puerto 80’s Web site. Puerto 80 filed a petition in district court requesting the domain names be released pending trial on the merits of the case. The judge denied the petition because Puerto 80 did not prove seizure would cause undue hardship and “[t]he main purpose of the Rojadirecta Web site . . . is to catalog links to the copyrighted athletic events. Any argument to the contrary is clearly disingenuous.” Puerto 80’s motion to dismiss is pending oral argument.
I. Government’s arguments that domain name seizure is legal
The government argues that there is rampant online infringement that must be stopped in order to enforce its own copyright laws and protect copyright holders. Returning the domain names would enable Puerto 80 to continue to violate copyright law. Furthermore, domain owners do not experience obvious financial hardship because, like Puerto 80, owners can simply purchase new domain names in other countries and return to business. The government’s position is that this seemingly drastic measure is necessary because many of these pirate sites are foreign—U.S. courts have no jurisdiction over the individuals who run the sites, so th traditional means of enforcement are not feasible. Lastly, the government argues that there is not a prior restraint on speech because people who participate in the sites’ discussion forums can easily find another platform for their speech online.
II. Problems with the legality of domain name seizure
The government claims that the Web site owners are subject to forfeit the domain names because they have engaged in criminal copyright infringement. Criminal copyright infringement, however, ordinarily requires a showing of willful, direct infringement. Courts have held that linking is not direct infringement. Regarding secondary liability, Puerto 80, if anything, only engaged in vicarious infringfement. But since vicarious copyright infringement is not covered by the criminal copyright statute, forfeiture is not legal.
B. Violation of First Amendment
The Puerto 80 contained user-generated speech via its discussion forums. In order for the government to impose a prior restraint on this user-generated speech, the government must show: (1) the reason for the ban is a government interest of the highest magnitude, and (2) the prior restraint is necessary. To be “necessary”, the proposed harm must be certain and irreparable. Also, the restraint must be effective to prevent harm and no alternatives to the restraint can exist. In Puerto 80, it is not clear that the government has fulfilled its First Amendment burden. Also, the argument that there is no speech infringement if other forums exist contravenes established First Amendment law: “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.” Schneider v. N.J. 308 U.S. 147 (1939). Seizure is overbroad too.
C. Violation of Due Process
Before the government may impose sanctions, the government must provide notice and a hearing for the accused to challenge government’s actions, except in extraordinary circumstances. Hamdi. The question is if, as a matter of policy, enforcing copyright law should be one of those rare circumstances when less/no process is acceptable.
D. Seizure may curb Internet innovation
Seizures interfere with and disrupt the critical Domain Name System infrastructure of the internet. Also, since the government may seize domains at their discretion, internet developers may have less incentive to put their time, creativity and effort into their domains in the future.