Homeland Security Finally Files For Civil Forfeiture Of Domains Seized Back In June

from the taking-their-sweet-time dept

While we've been paying a lot of attention to the domain seizures by Homeland Security's ICE (Immigration & Customs Enforcement) group in November, we also covered a similar operation that took place back in June. It's been noted that no actual charges have been filed against the operators of those sites. But in early December, without most people noticing, apparently ICE finally filed to officially commence civil forfeiture procedures against those domains (thanks to Terry Hart who noticed this). To understand what's going on here, I'll again point you to Hart's explanation of the difference between seizure and forfeiture. Basically, seizure is simply the first step in a forfeiture process (a process, that we've noted is regularly abused by law enforcement). It doesn't appear the owners of these sites have been charged with anything yet at all. It's just that, effectively, the sites themselves are being charged with being used in the commission of a crime.

There's nothing particularly surprising or enlightening in the forfeiture proceeding document, other than acting as official notification if anyone wishes to claim a legal interest in the "property" in question. They would need to contest the forfeiture within 60 days of December 17th. This covers the domain names TVshack.net, Movies-Link.tv, ZML.com, Now-movies.com, ThePirateCity.org, PlanetMoviez.com, Filespump.com. As far as I know, there has been little indication that any of the original domain holders for those domains plan to contest the forfeiture process. Many have already moved on to other domains anyway.

There's nothing all that enlightening in the filing. It's pretty similar to the affidavit we saw that was used to seize the more recent domain names, with a few similar technical errors, but nothing necessarily as egregious as the errors in the more recent case. Basically, an ICE agent downloaded or streamed a few movies on some sites the MPAA pointed them to. The MPAA then said "those movies are not legally available online," and, voila, now ICE says it should get to own the domain name. It's basically ICE admitting that it's working for Hollywood now -- which explains why it announced those original seizures at Disney's headquarters (which still seems like a huge conflict of interest that no one has yet to explain). Oddly, it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on. They simply relied on the MPAA entirely.

All that said, I have to admit that I'm still at a loss as to how this is really fits under Homeland Security's mandate. Defenders of this point out that ICE has long had intellectual property issues under its purview, but those issues were supposed to be focused on preventing counterfeit products from entering the country. To extend that to internet websites seems like a huge stretch. Either way, it seems like Homeland Security must have more important things to work on.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Jan 3rd, 2011 @ 6:54am

    It's basically ICE admitting that it's working for Hollywood now

    Now, it's basically ICE saying that will enforce the laws when infractions are pointed out to them.

    it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on

    When exactly did that become a requirement for law enforcement? Do police have to ask someone else on the highway if you were speeding?

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      abc gum, Jan 3rd, 2011 @ 7:07am

      Re:

      And I thought copyright infringement was a civil nmatter, huh.
      If it is criminal then the buren of proof is a bit more stringent - no?

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jan 3rd, 2011 @ 7:35am

        Re: Re:

        If it was criminal, then “contributory copyright infringment” is not a viable theory.

        Sony v Universal (1984) observes that the theory of contributory copyright infringment has not been enacted into statute. And that fact was noted in Grokster.

        The Copyright Act does not expressly render anyone liable for infringement committed by another.

        It's a due process violation to hold someone criminally guilty for violating an unwritten law.

         

        reply to this | link to this | view in chronology ]

        •  
          identicon
          Anonymous Coward, Jan 3rd, 2011 @ 7:48am

          Re: Re: Re:

          There are criminal aspects besides "contributory copyright infringment", that would include criminal facilitation, or for that matter something like commercial copyright infringement (infringment with a profit motive).

          We don't know, it is all speculation. However, it is safe to say that these sites would certainly appear to be operating outside of the law.

           

          reply to this | link to this | view in chronology ]

          •  
            identicon
            Anonymous Coward, Jan 3rd, 2011 @ 8:28am

            Re: Re: Re: Re:

            ... it is all speculation.

            Care to elaborate?

            Lanzetta v New Jersey:

            No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. The applicable rule is stated in Connally v. General Const. Co.: 'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well- recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'

            (Emphasis added. Footnote omitted.)

            “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.”

            So, do you want to elaborate on these supposed “criminal aspects”?

             

            reply to this | link to this | view in chronology ]

            •  
              identicon
              Anonymous Coward, Jan 3rd, 2011 @ 9:16am

              Re: Re: Re: Re: Re:

              The only elaboration is that we don't yet know all that was in the documentation or reasoning behind the order to seize, we don't know what laws specifically were broken. Until then, everything is just speculation.

               

              reply to this | link to this | view in chronology ]

              •  
                identicon
                Anonymous Coward, Jan 3rd, 2011 @ 9:30am

                Re: Re: Re: Re: Re: Re:

                The only elaboration is ... we don't know what laws specifically were broken.

                Catch-22

                That's some law, that catch-22.

                 

                reply to this | link to this | view in chronology ]

          •  
            icon
            DH's Love Child (profile), Jan 3rd, 2011 @ 10:48am

            Re: Re: Re: Re:

            We don't know, it is all speculation. However, it is safe to say that these sites would certainly appear to be operating outside of the law.

            Really? and the proof of that would be?

             

            reply to this | link to this | view in chronology ]

            •  
              identicon
              Anonymous Coward, Jan 3rd, 2011 @ 11:36am

              Re: Re: Re: Re: Re:

              It always comes back to the same thing: If I have a guy I got to all the time to buy drugs, and he always has a source (yeah man, call billy, he has what you need), it can be clearly inferred that he is part of a conspiracy to sell drugs.

              The major mistake site owners keep making is thinking that because the files are hosted on another service, that they can point to them without any risk. The sites were great access points commonly used by people looking to obtain pirated material, and the sites knew it and continued to push the stuff.

              It is very simple. Absolute proof is for a judge and jury. Probably cause is all that is required to obtain a search warrant. The rest of the case as we know it has been documented on here. Keep up with the reading!

               

              reply to this | link to this | view in chronology ]

              •  
                identicon
                Anonymous Coward, Jan 3rd, 2011 @ 12:19pm

                Re: Re: Re: Re: Re: Re:

                ... because the files are hosted on another service, that they can point to them...

                Caselaw on the linking issue:

                Perfect 10 v Google (9th Cir., 2007)

                 . . . . Google does not ... 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. 17 U.S.C. § 101.

                Instead of communicating a copy of the image, Google provides HTML instructions that direct a user's browser to a website publisher's computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy. . . .

                (Emphasis added.)

                 

                reply to this | link to this | view in chronology ]

                •  
                  icon
                  Terry Hart (profile), Jan 3rd, 2011 @ 1:04pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Note that portion of the decision speaks only to Google's liability for direct infringement. As far as liability for indirect infringement goes, the court affirmed the finding that Google was not vicariously liable but remanded on the issue of contributory infringement.

                   

                  reply to this | link to this | view in chronology ]

                  •  
                    identicon
                    Anonymous Coward, Jan 3rd, 2011 @ 1:27pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    ... remanded on the issue of contributory infringement.

                    Remanded for a civil proceeding on that issue.

                    MGM v Grokster

                    Although "[t]he Copyright Act does not expressly render anyone liable for infringement committed by another," Sony Corp. v. Universal City Studios, these doctrines of secondary liability emerged from common law principles  . . .

                    (Emphasis added.)

                    A common-law criminal charge of “contributory infringement” was not contemplated by the Ninth Circuit.

                     

                    reply to this | link to this | view in chronology ]

                    •  
                      icon
                      Terry Hart (profile), Jan 3rd, 2011 @ 3:09pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      If you're arguing that criminal law never recognizes indirect liability, that's just flat-out wrong. Aiding and abetting -- or facilitating the commission of a crime -- makes you as guilty as the person actually committing the crime; that's basic criminal law. And just to be clear, 18 USC § 2 expressly says so.

                       

                      reply to this | link to this | view in chronology ]

                      •  
                        identicon
                        Anonymous Coward, Jan 3rd, 2011 @ 3:49pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        If the government wants to charge aiding and abetting, then they have to charge that. And then prove it.

                        But if the government wants to charge that providing a hypertext link to infringing material “encourages” infringement, then that is insufficient to find criminal liability. Not without more.

                         

                        reply to this | link to this | view in chronology ]

    •  
      identicon
      Michael, Jan 3rd, 2011 @ 7:21am

      Re:

      The police don't enforce civil actions by seizeing property. This was never a criminal matter.

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jan 3rd, 2011 @ 8:11am

      Re:

      Wrong analogy. This would be more similar to the cops issuing you a speeding ticket based on an unverified witness' calling in and reporting you, claiming you were speeding. The cops then issued a ticket without any investigation or challenge to whether the "speeding" was over the legal speed limit, or the person who reported you just thought you should slow down. ("Hey you kids, get off my lawn!")

      Police have speed detecting devices, calibrated "correctly" (as required for the enforcement to stand up in court) to act as demonstrable proof that you were speeding. Citizens may or may not have certified speed tracking devices, but for the enforcement agent to not demand the burden of proof and go through the due process of critical review, the accusation is arbitrary hearsay. Reasonable "proof" is very much a "requirement for law enforcement", despite your suggestion otherwise.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jan 3rd, 2011 @ 7:10am

    Now, it's basically ICE saying that will enforce the laws when infractions are pointed out to them.


    It's now ICE saying that they will enforce the laws when infractions are pointed out to them by those they wish to listen to. Many other infractions have been pointed out the ICE that ICE has completely ignored. The question as to why they paid attention to these claims is still, unofficial opinions withstanding, unanswered.

    When exactly did that become a requirement for law enforcement? Do police have to ask someone else on the highway if you were speeding?

    It is a requirement of the law that an actual infraction have occurred. In the case of speeding the officer can not just state "it looked like he was going fast", in those cases the speed gun is considered the 3rd party, non-biased analysis.

    In these cases ICE just claimed based on a 3rd party biased analysis that the content was a problem.

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jan 3rd, 2011 @ 7:36am

    The US Government tightens their grip as they slide deeper and deeper into debt and bankruptcy. What happens when we can no longer borrow the deficit? Will we get the money back from Cheney and friends?
    The Government will simply borrow (not pay back) from Social Security. Can you see it? 77 million old folks (baby boomers) in open revolution against having their future (they paid for it) stolen again by the Republican Party? Will it be Ohio State all over again except at the old folks home? Bring out the National Guard to protect us against people with canes and walkers.
    Will they shoot your Grandma and Grandpa?

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    alien coward, Jan 3rd, 2011 @ 7:39am

    Is the "that no one has yet to explain" expression correct? I'm a foreigner, and cannot wrap my mind around it. :-(

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Spointman, Jan 3rd, 2011 @ 7:42am

      Re:

      It should probably be "that no one has yet explained" or "that anyone has yet to explain."

       

      reply to this | link to this | view in chronology ]

      •  
        identicon
        Anonymous Coward, Jan 3rd, 2011 @ 9:02am

        Re: Re:

        "to explain" is present tense
        "explained" is part tense

        Both are technically correct but convey different meanings.

         

        reply to this | link to this | view in chronology ]

        •  
          icon
          Gabriel Tane (profile), Jan 3rd, 2011 @ 9:09am

          Re: Re: Re:

          the 'present tense' is modified with the "has yet". It implies that no one has made explanation yet... or to put it another way: the present-tense of 'explanation' has not yet been created.

          It’s one of the reasons I hate the 'grammatical rule' of ending a sentence with a preposition. There is nothing conceptually wrong with saying "no one has explained it yet". However, the effete high-society snobs in the Victorian era introduced a good number of these 'rules' so that the educated would sound "better" than the uneducated poor. And that's the only reason we have such rules.

           

          reply to this | link to this | view in chronology ]

  •  
    identicon
    Monarch, Jan 3rd, 2011 @ 8:02am

    More important things to work on? You mean like securing our borders from Mexican gangs bringing drugs into the U.S. and violent crime? Yeah, like that will ever happen! They might actually have to put their lives in danger while providing security for the U.S. Citizens!

     

    reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jan 3rd, 2011 @ 8:11am

    Public Notice link not working

    I'm unable to view the public notice for some reason.

    Attempting to access:

    http://www.forfeiture.gov/ViewNotice.aspx?n=34228&a=0

    results in:

    “We are sorry, but we are unable to locate the page you requested or an error occurred while processing your request.”

    Has anyone else had more success? Or preferably a better link? I've also tried using the search at forfeiture.gov. But not gotten any records back.

    Someone want to give me a hand, please? I normally browse without javascript, but I've tried enabling it, and still no success. Also, this machine doesn't have Adobe Flash installed, but I have access to less secure machines.

     

    reply to this | link to this | view in chronology ]

  •  
    icon
    Kevin (profile), Jan 3rd, 2011 @ 8:27am

    Their thinking?

    Since ICE takes orders from DHS, and ICE is in charge of making sure that counterfeit/fraudulent/illegal goods are seized at the borders...... So they twist the law and stretch it to include websites that link or post subject matter related to illegal downloads so sayith the MPAA. I may not have the eloquence of Dark Helemt but that's the best I can do to rationalize their actions.

     

    reply to this | link to this | view in chronology ]

    •  
      icon
      The eejit (profile), Jan 3rd, 2011 @ 11:41am

      Re: Their thinking?

      Not quite.

      LAst I checked *.tv was an international TLDm meaning that the ICE doesn't have jurisdiction. I think Imm'a crack open the popcorn and opium.

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jan 3rd, 2011 @ 4:40pm

    "Homeland Security Finally Files For Civil Forfeiture Of Domains Seized Back In June"

    AT THE SPEED OF GOVERNMENT!!!

     

    reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jan 3rd, 2011 @ 4:40pm

      Re:

      (well, government acts quickly to serve corporate interests, but they act slowly to do anything else).

       

      reply to this | link to this | view in chronology ]

    •  
      identicon
      Anonymous Coward, Jan 4th, 2011 @ 5:02am

      Re:

      AT THE SPEED OF GOVERNMENT!!!

      “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”   ——Elrod v Burns (1976)

       

      reply to this | link to this | view in chronology ]

  •  
    identicon
    Anonymous Coward, Jan 3rd, 2011 @ 6:15pm

    I have to admit that I'm still at a loss as to how this is really fits under Homeland Security's mandate.

    Are you suggesting the federal government has to a brand new agency every time it passes a new law? Laws are quite reasonably enforced by whatever agency is the closest. ICE already handles copyright infringement through importation at the border, so this seems like a clear fit.

    The other possible agencies I can think of are all way a way worse fit: BATF, Secret Service, US Marshalls, or FBI.

     

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Save me a cookie
  • Note: A CRLF will be replaced by a break tag (<br>), all other allowable HTML will remain intact
  • Allowed HTML Tags: <b> <i> <a> <em> <br> <strong> <blockquote> <hr> <tt>
Follow Techdirt
A word from our sponsors...
Essential Reading
Techdirt Reading List
Techdirt Insider Chat
A word from our sponsors...
Recent Stories
A word from our sponsors...

Close

Email This