...throughout its brief, the government assumes that the First Amendment does not protect any Rojadirecta content that the government claims links to infringing material. Not so. True, were the government ultimately to show at a hearing that the Rojadirecta web sites or certain content on those web sites infringed copyrights, that content would no longer be protected. But the very point of the prior restraint doctrine is that the government does not get to assume that speech is unprotected without first affording the speaker notice and an adversarial hearing on that issue. The government’s failure to afford either renders its acts here unconstitutional.

Under the government’s view of the Constitution, no First Amendment scrutiny is required in order for it to shut down a search engine, a website, a newspaper, or a printing press it believes is being used to violate the law—not just prior to a determination of the illegality of the content, but without ever having to prove that its owner violated the law. All it needs to do is assert that those sites are somehow facilitating infringement. The government’s theory would have allowed it to seize the New York Times issue that published the Pentagon Papers and destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of national security laws. And the Times would have had no opportunity to show that its speech was lawful. That is simply not the law. New York Times Co. v. United States, 403 U.S. 713 (1971) (effort to block publication of information alleged to violate the law in advance of legal hearing was an unconstitutional prior restraint).

The government seized and shut down two Internet domain names—the 21st century equivalent of printing presses. See Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997) (noting that through use of the Internet, “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer.”). Seizure of that sort is a prior restraint on speech. Prior restraints are “‘the most serious and least tolerable infringement’ on our freedoms of speech and press.” United States v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005) (quoting Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) ). They can be justified only by scrupulous attention to procedure and an extraordinary showing on the merits. Neither is present here.

The government seized and shut down Puerto 80 and its users’ means of communication in an ex parte procedure with no notice to Puerto 80 and no adversary hearing of any kind. It held those domain names for more than six months before any court ever considered whether the seizure violated the First Amendment or caused Puerto 80 substantial hardship such that the domain names should be released pending a determination of the merits of the forfeiture case. To date, no court has reached the merits of the government’s case. When the district court did rule, it dismissed the First Amendment concerns in a paragraph, improperly placing the burden on Puerto 80 to show that it suffered substantial hardship from the government’s prior restraint. And the government did all this without ever having had to prove to any court that Puerto 80 (or anyone else) was guilty of copyright infringement. Indeed, to this day the government takes the position that it will never have to justify its seizure by showing that Puerto 80 violated any law. (MJN, Exhibit D at 1.)

The procedure used by the government flies in the face of First Amendment law. Decades of First Amendment jurisprudence establishes that the government is entitled to seize property used for speech only after notice to the property owner and an adversarial hearing that fully vets the merits of the government’s case and concludes that the defendant acted unlawfully. This seizure was conducted with no notice, no hearing of any kind, and was based only on the government’s assertion that it had probable cause to believe that criminal infringement occurred because some of the content linked to by Puerto 80 may be unauthorized. That procedural failure is itself enough to condemn the government’s action as an unlawful prior restraint. And it is compounded by the government’s substantive failure to show anything more than probable cause to believe that criminal copyright infringement had occurred. The First Amendment requires more than probable cause. It requires a final determination on the merits that Puerto 80’s use of the domain names was unlawful. For both reasons, the government’s prior restraint was unlawful and should be lifted.

The government’s view of its powers under the civil forfeiture law, articulated for the first time in its opposition to Puerto 80’s motion to dismiss, is breathtaking. In the government’s view, it doesn’t need to allege that Puerto 80 violated any law, or even engaged in any civil wrong, in order to seize and shut down its Internet domain name. As long as the government thinks that someone, somewhere in the world, is engaged in copyright infringement, it believes it is entitled to seize any asset that might be connected to that infringement, whether or not the owner engaged in any wrongdoing, and whether or not that asset in fact “facilitated” the commission of any crime. And it further believes it is entitled to seize Internet domain names and shut down protected speech without ever having to prove that the speech was, in fact, unlawful, much less that the owner of the asset was responsible for any crime.

On the government’s view of its powers, it is entitled to seize the Google, Bing, or Yahoo web site, because someone, somewhere, has used those sites’ search engines to find infringing content. It is entitled to seize Verizon’s telephone network for the same reason. It is entitled to seize the power company, since numerous crimes are “facilitated” by the use of electricity. And the only reason the government lost the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713 (1971), is that it asserted the wrong statute. Had the government simply seized the New York Times’ printing presses, pointing out that they were being used to “facilitate” the disclosure of government secrets, it would have been able to block the disclosure of Daniel Ellsberg’s secrets.

But in attempting to argue its new “facilitation” theory, the government cites to different acts by different actors (Puerto 80, other websites that are streaming content, and unidentified users who follow links to the content) for different elements of the alleged offense. Not only does this approach render the government’s opposition brief incoherent; it does nothing to change the fact that the Complaint fails to plead the elements of criminal copyright infringement by Puerto 80 or any other actor.

Under the government’s newly-raised construction of the statute, the government may use the forfeiture statute to make an end-run around the First Amendment by seizing a lawful channel of communication. Such a seizure prevents lawful speech, and constitutes a prior restraint on that lawful speech. The government’s suggested construction of the forfeiture statute would render it unconstitutional, and should therefore be rejected.....

[....]

If the government’s theory of “facilitation” were adopted, the government would be permitted to shut down a search engine, website, newspaper, and printing press not just prior to a determination of the illegality of the content, but without ever having to show that it was operating unlawfully. It would permit, for instance, the government to shut down an entire printing press and newspaper for running an advertisement that contained allegedly infringing content. Or it would permit the seizure of a search engine because of its indexing allegedly infringing material. Such actions are plainly unconstitutional.

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.

The prior restraint on Puerto 80 users’ and readers’ First Amendment rights constitutes irreparable harm of the highest order. The Supreme Court has held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996) (“Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction.”). In CBS, Inc. v. Davis, the Supreme Court stayed the lower court injunction that prohibited CBS from broadcasting video footage documenting unsanitary practices in the meat industry, finding that such prior restraint caused “irreparable harm to the news media that is intolerable under the First Amendment.” 510 U.S. 1315, 1315-16, 1318 (1994) (emphasis added). The deprivation of Constitutional rights is, therefore, ipso facto irreparable injury and subject to expedited review.

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. Puerto 80 was not provided any advance notice, nor was it 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. That procedural failing itself indicates that the government’s action was an unlawful prior restraint. “[T]he lack of notice or opportunity to be heard normally renders a prior restraint invalid.” United States v. Quattrone, 402 F.3d 304, 312 (2d Cir. 2005) (citing Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 180 (1968)).

Despite what Puerto 80 appears to believe, the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company. Instead, and as the Complaint makes absolutely clear, the Government has brought a civil action against certain property an in rem proceeding against two domain names that facilitated the commission of criminal copyright infringement and are thus subject to forfeiture pursuant to Section 2323(a)(I) of Title 18, United States Code.

(1) the existence-of a valid copyright; (2) an act of infringement of that copyright; (3) willfulness on the part of the infringer; and (4) either that (a) the infringement was for purposes of commercial advantage or private financial gain, or (b) the infringer reproduced or distributed, during any 180-day period, one or more copies or phonorecords of one or more copyrighted works, with a total retail value of more than $1,000.

With respect to private financial gain, the Complaint makes clear that when an Internet· user selected an individual link to a particular sporting event from the Rojadirecta website and the corresponding stream of the telecast began to run, advertisements that were separate and distinct from any commercials that may have been aired during the stream of the sporting event broadcast were periodically displayed at the bottom of the video during the live stream. (Compl. ~ 14c). On a motion to dismiss, this Court is required to draw all inferences from the allegations of a complaint in the light most favorable to the plaintiff. Roth, 489 F.3d at 510. It is certainly a permissible inference for this Court to draw that these advertisements generate revenue and result in private financial gain.

Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved... It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule.

Nor is the Government required to show probable cause for forfeiture. See,~, Daccarett, 6 F.3d at 47. Instead, the complaint simply needs to establish a "reasonable belief' that the government will be able to meet its burden at trial. Id. "In other words, the complaint need not allege facts sufficient to show that specific property is tainted, but facts sufficient to support a reasonable belief that the government can demonstrate" the ultimate trial burden "for finding the property tainted."

Because Puerto 80 did not copy anything, it cannot be found liable for direct infringement by virtue of hosting links to content. This is a firmly established legal proposition that has been affirmed time and time again by many courts. See CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d 544, 546 (4th Cir. 2004) (“Because LoopNet, as an Internet service provider, is simply the owner and manager of a system used by others who are violating CoStar’s copyrights and is not an actual duplicator itself, it is not directly liable for copyright infringement.”) (emphasis in original). Accord Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 717 (9th Cir. 2007) (party from whose site content is actually transmitted and subsequently displayed on the end-user’s screen is responsible for display, not search engine that merely links to that content); 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.”); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660(SHS), 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement); Ticketmaster Corp. v. Tickets.com, Inc., 54 U.S.P.Q.2d 1344, 1346 (C.D. Cal. 2000) (“[H]yperlinking does not itself involve a [direct] violation of the Copyright Act (whatever it may do for other claims) since no copying is involved. . . . [It] is analogous to using a library’s card index to get reference to particular items, albeit faster and more efficiently.”); Bernstein v. JC Penney, Inc., No. 98-2958 R EX, 1998 WL 906644, at *1 (C.D. Cal. Sept. 29, 1998) (granting motion to dismiss on the ground that hyperlinking cannot constitute direct infringement).

Rojadirecta’s content (i.e., its links and discussion forums) is stored on servers residing outside the United States. Compl. ¶ 14(f) (alleging that the domain names are hosted on a server in Canada). There is no allegation that Puerto 80 operates its site from within the U.S., and indeed the Complaint appears to acknowledge that the Rojadirecta site is based in Spain.... The government accessed the links which directed them to the allegedly infringing material by visiting a site hosted outside the United States. Thus, each step of the process occurs outside the United States, and any material that Puerto 80 has control over resides on serves outside the United States. Therefore, no act of infringement by Puerto 80 has taken place in the United States. Accord Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701, 718-19 (9th Cir. 2007) (copying (and therefore infringement) occurs when material is stored on server).

"Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate...."

"We are aware of no general principle that freedom of speech may be abridged when the speaker's listeners could come by his message by some other means...."

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.

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.

... 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).

Because the content ran on a live stream from another website, the selected show did not start at the beginning of the program; instead, the program ran from whatever particular point the show was presently at in the stream. Moreover, the event broadcast was shown in real time and was the same broadcast as the authorized broadcast of that same event. However, these broadcasts over Rojadirecta were not authorized by the relevant copyright holders.

Moreover , given the passage of more than five months from the Government's seizure, a return of the Rojadirecta Domain Names is unlikely to matter to the overall traffic the website receives.

Indeed, it is clear from the record before this Court that the Government's seizure of the Rojadirecta Domain Names was prompted by enforcement of the criminal copyright laws, and not as regulation of speech or other expressive conduct. As such, the seizure is not properly viewed as a prior restraint. See, ~, Arcara v. Cloud Books, Inc., 478 U.S. 697, 706 n.2 (1986).

Moreover, Puerto 80' s attempts to liken itself to an Internet search engine is wholly unavailing. Unlike a search engine or other site that aggregates links to existing content neutral material on the Internet, Rojadirecta organizes links to very specific content in a precise and targeted way.

In linking to this content, Puerto 80's failure to "stop an infringing copy from being distributed worldwide constitutes substantial participation" in distribution of copyrighted material. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 141 (S.D.N.Y. 1991).