“It’s an interesting argument. The main flaw that I see (and I hope that someone in authority to make these determinations sees it too) is that there is no law suggesting that linking is a crime”

The point, I guess I was trying to make was that with civil asset forfeiture, the idea is that the asset is used in the commission of a crime. So, the basic gist is that the website was used in the commission of the act of piracy. Now, you might say that the owner of the web domain didn’t commit the crime and the linking to sites is not a crime, but that doesn’t matter. The decision in Bennis v. Michigan was about a woman whose car was seized because her husband used the car to have sex with a prostitute. She committed no crime, but she was penalized because someone used her asset (the car) to commit a crime. ICE would use the same argument here (I’m not sure what, if any, legal arguments they’ve presented), saying that since some person used a website to link to another website where they pirated content, the first website was used in the commission of a crime and is thus open to civil forfeiture.

Now, it doesn’t take too much thought to see that the implications of such an argument would be huge, suddenly google and youtube and a whole bunch of other legit sites are now up to be seized (in fact, the whole point of DMCA was to prevent that problem with its system of takedown notices that would define third party liability). You’d thus have to circumscribe your argument to define what exactly makes the sites seized different from other sites that are sometimes used in the process of piracy, probably by arguing that certain sites are primarily used for piracy. The rationale usually used to defend civil forfeiture is that it takes the profit out of illegal activities, so if they can show that these sites profit from the piracy, that might also bolster the case.

Additionally, you might try to deflect free speech arguments by claiming that links are not a form of expression, but merely a service or a tool. Namely, you’d say that when you provide a link you’re not stating an opinion or presenting a fact, you’re merely pointing somewhere, like opening the door for someone. So, if you’ve got a site like atdhe.net, which was seized just before the superbowl, which was purely links, you might be able to claim the site really isn’t protected speech, it’s just a set of instructions your browser uses to get to infringing content.

As I said before, I wouldn’t advocate such arguments. The whole idea of civil forfeiture is completely against the 4th amendment, and end all IP law if I could. But considering these are the arguments that might be presented, it’s worth thinking about them.