And the question here is not whether substantive free speech law would save the websites from copyright liability. It is clear that it would not, if adjudicated as infringing. Instead, the question is whether the in rem seizure of pure speech, done because it may be infringing, violates the procedural safeguards instituted by the First Amendment. Here, entire websites consisting of pure expression were removed, presumably because some of the speech encouraged viewers to follow links to third-party websites and commit copyright infringement. Direct copyright infringement was not being conducted on these websites at all; it was instead the cyberlockers that reproduced and distributed the content. If the speech is adjudicated to be “inducing” under that secondary liability theory the speech is likely enjoinable consistent with the First Amendment. If it is not so found, it is constitutionally protected free speech. And at this moment no court has actually turned to the merits of this claim and determined if it is indeed unlawfully inducing. Instead, a magistrate judge determined that there was a sufficient probability that it may be infringing, and used that alone to take the website down. Courts would not tolerate such a cursory review in all other areas of free speech law.

The First Amendment embodies certain procedural safeguards to help prevent free speech from being accidentally silenced while unprotected speech is enjoined. An analogy to obscenity doctrine can provide useful guidance. Like infringing speech, obscene speech is unprotected by the First Amendment. The determination of whether a work is obscene also depends entirely upon an examination of its content, requiring application of a legal test to specific facts. And in both cases the difference between protected and unprotected speech can sometimes be a “dim line.”

Courts are quite sensitive about the precarious line between proscribable speech and protected speech, and are very hostile against government efforts that engage in “prior restraint.” Prior restraints are considered the “most serious and least tolerable infringement on First Amendment rights,” and bear a “heavy presumption” against validity. Any effort to remove speech from circulation before the speech is adjudicated as unlawful can work an unconstitutional prior restraint, even when imposed after the speech is published.

To that end, courts have recognized that seizure of expressive works requires special procedural considerations.

Needless to say, these safeguards were not followed in Operation In Our Sites. The seizures here were not done to preserve evidence, as nothing tangible was taken into custody, and it would be illogical to claim that there was any risk that a defendant would “flee” with their domain name and thus deprive the court of evidence. This seizure instead took the website out of circulation entirely, at least for a time. No administrative proceeding with the safeguards of Freedman was present. Instead, a single federal agent made a probable-cause level statement to a magistrate judge, who ruled ex parte. In striking contrast to the careful process required when seizing expressive works in the doctrine of obscenity, the seizures conducted in Operation in Our Sites show the bare minimum of process. This turns First Amendment due process on its head; it takes down speech on the basis of its content (to wit, that it is infringing content or induces others to infringe copyright) before an adversarial proceeding determines if the speech is in fact unlawful.

Critics also argue that First Amendment analysis is inappropriate because the websites were not seized because of their expressive content, but because they are “property” used to facilitate crimes. This has intuitive appeal. After all, we do not use the First Amendment to stop the closure of a bar that violates liquor laws, even though bars are often places where members of the public gather to debate the issues of the day.

The problem with this argument is it unfairly characterizes the law at issue. Copyright forfeiture is not a content-neutral law allowing for the seizure of any property used in crime. The law providing for forfeiture in copyright cases expressly incorporates substantive copyright law. Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed. To equate content based laws with content-neutral laws does not conform with First Amendment doctrine. These websites were not seized here because their domain name offended copyright. It was the speech on the website, allegedly telling people where and how to find infringing content, that was the crux of the forfeiture. The object of the domain name seizure was to constructively remove this offending speech. The analysis of illegality here begins and ends with an examination of the speech for its content.

This argument ignores the very reason why courts are so hesitant to engage in prior restraint in the first place. The same argument could be raised for defamatory speech, speech that could threaten national security, or speech that incites others to violence, and yet we do not tolerate prophylactic injunctions in those cases.

This is not just coincidence or legislative good fortune for websites that frequently link to content that may be infringing. The safe harbors of the DMCA are a legislative expression of a desire to foster cooperation between online service providers and copyright owners. The legislative history around the safe harbor indicates that the provision is “intended to promote the development of information location tools generally, and Internet directories ... in particular.” The statute mandates a bargain between these two groups: the websites will have a designated person to receive complaints and respond expeditiously to remove infringing links, and in exchange the copyright owners will not sue the websites for infringement through their linking.

This spirit of cooperation vanishes when enforcement moves from an inter partes to an ex parte remedy. The copyright owner is no longer encouraged to reach out to the website owner. Instead, they will persuade ICE to file a seizure warrant to take down the disputed websites. The website owner now has no chance to expeditiously right the perceived wrong. Instead she must come forward in court and dispute the criminality of the seized domain name. A nervous website owner would probably prefer letting that website die out and starting a new one elsewhere. This induces evasion. It is therefore unsurprising that these websites have the feel of criminality; the law treated them as criminals. The forfeiture provisions of the PRO-IP Act undercut the cooperative spirit of the DMCA, when applied against websites.

The term "Internet site dedicated to infringing activities" means an Internet site accessed through a specific domain name that has no [substantial/significant] use other than, or is designed, operated, or marketed by its operator persons operating in concert with the operator, [and is in fact,] primarily as a means for --

1. enabling or facilitating the reproduction, distribution, or performance of copyright works, in complete or substantially complete form, in a manner that constitutes copyright infringement under section 501 of title 17, or offering goods or services in violation of section 1201 of title 17; or
2. enabling or facilitating sale, distribution, or promotion of goods, services or materials bearing a counterfeit market, as that term is defined in section 34(d) of the Lanham Act;

[provided that there is no objectively reasonable interpretation of an express license between the owner or operator of such Internet site and the copyright owner or trademark owner or an agent thereof that authorizes the activities;]

For purposes of this section, an Internet site is 'dedicated to infringing activities' if such site-

‘‘(1) is otherwise subject to civil forfeiture to the United States Government under section 2323; or

‘‘(2) is--

‘‘(A) primarily designed, has no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer--

‘‘(i) goods or services in violation of title 17, United States Code, or enable or facilitate a violation of title 17, United States Code, including by offering or providing access to, without the authorization of the copyright owner or otherwise by operation of law, copies of, or public performance or display of, works protected by title 17, in complete or substantially complete form, by any means, including by means of download, transmission, or otherwise, including the provision of a link or aggregated links to other sites or Internet resources for obtaining such copies for accessing such performance or displays; or

‘‘(ii) to sell or distribute goods, services, or materials bearing a counterfeit mark, as that term is defined in section 34(d) of the Act entitled ‘An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes’, approved July 5, 1946 (commonly referred to as the ‘Trademark Act of 1946’ or the ‘Lanham Act’; 15 U.S.C. 1116(d)); and

‘‘(B) engaged in the activities described in subparagraph (A), and when taken together, such activities are central to the activity of the Internet site or sites accessed through a specific domain name.

The Act similarly authorizes a rights holder who is the victim of the infringement to bring an action against the owner, registrant, or Internet site dedicated to infringement, whether domestic or foreign, and seek a court order against the domain name registrant, owner, or the domain name.

Speaking at an event hosted by the Computer and Communications Industry Association (CCIA), Wyden said he sees a tension in the government between the aggressive ICE crackdown and the work of Secretary of State Hillary Clinton to promote Internet freedom. The State Department funds technology aimed at derailing Web censorship by foreign regimes.

Wyden, who commended Clinton for her efforts and said he has spoken with her on the initiative, said domain-name seizures in the U.S. could be a setback to Clinton's Internet freedom work.

"Hopefully, her views will prevail, and not the views of ICE," he said.

Wyden said foreign governments might look at the domain seizures and say, "We've seen it done in the U.S. We have the green light to do it here in our country."

I think it's important to make a distinction between counterfeit goods and copyright infringement. This is right at the heart of the debate. With respect to counterfeits, the bad guys are warehousing, advertising, they're directly selling illicit merchandise, often to unsuspecting consumers. With respect to copyrights, what constitutes willful distribution or even infringement is still unsettled law.

In addition, with respect to the illegal production or distribution of tangible goods, the government has made it clear what's legal and what's not. So this is an area where you've got a pretty bright line; when you're talking about counterfeits, you've got efforts that are reasonably targeted, people understand what the ground rules are, there's a sense that you understand what law enforcement is doing with respect to key issues like due process. That is not the case today for copyright infringement.

That's right at the heart of this debate. I mean, when you're seizing tangible goods, you're not undermining the pillars of the Internet as well.

Most reasonable Internet experts are telling us that linking itself cannot be illegal--but we've still got ICE out there saying, "Let's prosecute folks for linking." That's another issue that needs to be resolved.

It is one thing to say that the Internet must be free; it is something else to say that it must be lawless. Even the Wild West had sheriffs, and even those who use the Internet must obey duly adopted laws.... Thus, it is no surprise that libel law routinely applies to material that appears on the Internet just as it does to other material.... Copyright law is no different. One current treatise succinctly notes, "[a]ll existing copyright protections are applicable to the Internet."

The law could not be clearer, however, that injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations. That premise was explicit in the critical concurring opinion in the Supreme Court’s most famous prior restraint case, assessing publication of the Pentagon Papers in New York Times Co. v. United States. As Justice Byron White’s concurring opinion observed in that case, "no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another."

Criminals are attempting to steal American ideas and products and sell them over the Internet, in flea markets, in legitimate retail outlets and elsewhere

From counterfeit pharmaceuticals and electronics to pirated movies, music and software, IP thieves undermine the U.S. economy and jeopardize public safety.

American jobs are being lost, American innovation is being diluted and the public health and safety of Americans is at risk -- and organized criminal enterprises are profiting from their increasing involvement in IP theft.

"There's no First Amendment right that protects thieves. It protects speech."

The progressive activist organization Demand Progress and a group of conservative bloggers lead by Republican National Committee Internet Director Patrick Ruffini are staunchly opposed to the bill and the administration's recent moves to seize and shut down domains linking to pirated content.

"The core conservative principles of small government and basic individual freedoms should not be abandoned on the Internet," Ruffini said. "COICA represents a dangerous new encroachment of the government into our digital lives."

"In their attempts to reign in online file-sharing, Hollywood moguls are once again willing to risk massive censorship," said Demand Progress and Reddit co-founder Aaron Swartz.

"COICA's passage would be a tremendous blow to free speech on the Internet –– and likely a first step towards much broader online censorship."

First, they'd decide in advance to mirror the IANA DNS system as closely as possible. Anything that appeared in the IANA DNS system would automatically and instantaneously appear in the Pirate Bay DNS system. If ICANN goes ahead and creates a lot of new TLDs then all of those new TLDs would appear in the Pirate Bay DNS system as well, all pointing at ICANN's chosen registrars. In other words no existing DNS content would be overridden (or dare I say: "pirated".)

Second, they'd pick some new TLD that they wanted to create in the Pirate Bay DNS system that would serve their business needs and would be extremely unlikely to ever conflict with any future IANA TLD. For this I'm thinking .PIRATE or .PIRATEBAY or .ARGHHH but that's a decision best left up to the artistic team. For now let's assume that they chose .PIRATE so that their second level domain names would be content names like TORRENTS.PIRATE or ITS-A-WONDERFUL-LIFE.PIRATE.

My greatest worry is what people will do to bypass all this junk or to prevent other people from bypassing it. My fellow humans are a proud and occasionally adversarial bunch and they don't like being told what they can't do or what they have to do. The things we'll all be doing to bypass the local DNS restrictions imposed by our coffee shops or our governments or our ISPs will break everything. Where this ends is with questions like "which DNS system are you using?" and "which DNS systems is your TLD in?" which in other words means that where this ends is a world without universal naming. We adopted DNS to get universal naming, and today we have universal naming except inside Network Address Translation (NAT) borders. Universal naming is one of the reasons for the Internet's success and dominance. If we're going to start doing stuff like COICA then we should have stuck with a "hosts file" on every Internet connected computer and let every connected device decide for itself what names it recognized.

"Think of Google as the gateway for criminals into America as it's currently configured,"

The other side of this, of course, is that this is about, essentially, stealing copyrighted material and selling counterfeit goods. This goes to tens of billions of dollars in theft. Some of the supporters of this were after the American Federation of TV and Radio Artists, the Screen Actors Guild, the Directors Guild... I happen to belong to all three of those unions. This doesn't just affect the jobs of writers and directors and producers; when they're free to steal all this intellectual material, it changes the business model of a movie. So it really costs the jobs of the technicians and the crew and the craft services people. It changes the entire business model for the industry. It's not just movies and TV, it's everything.

"Copyright piracy and the sale of counterfeit goods are reported to cost the American economy billions of dollars annually and hundreds of thousands of lost jobs. That is why inaction is not an option, and we must pass online infringement legislation in this Congress before rogue websites harm more businesses, and result in more lost jobs."

Make no mistake, I share the committee's goal of fighting counterfeiting and protecting our creative industries and the good paying jobs they support. The Internet has unquestionably created new opportunities to traffic in counterfeit and illegal goods. The fact that the law has not always kept pace with technology may make it easier for bad actors to exploit new opportunities. Congress is right to want to go after those who are "stealing American intellectual property." However, in writing laws to target the bad actors, Congress cannot afford to forget that the primary uses of the Internet are activities protected by the First Amendment, not civil or criminal violations.

[...] Yes, the Internet needs reasonable laws and bad actors need to be pursued, but the freedoms of billions of individual Internet users cannot be sacrificed in the interest of easing that pursuit. The decisions we make to police the Internet today will also govern how this relatively new medium will continue to develop and shape our world. I objected to last year's Combating Online Infringement of Copyrights Act not because it might reduce the Internet's ability to facilitate infringement, but because I believe it went about it in a way that would also reduce the Internet's ability to promote democracy, commerce and free speech.

1. Don't be hasty. Good public policy is not made on the back of a galloping horse. While both Congress and law enforcement are understandably eager to go after bad actors, both must be mindful of the precedents that they are setting in the U.S. and around the world. The law is best applied when the government's assertions can be challenged before its actions are approved.
2. Avoid collateral damage. Granting law enforcement broad authority to censor online content has a chilling effect on free speech. Narrowly focus law enforcement’s authority on those who are deliberately breaking the law or infringing on others’ property rights for commercial gain.
3. Preserve Fair Use and secondary liability protections. These safeguards are fundamental to Internet commerce and explain why American companies have been so successful in the global marketplace. The network effect is such a powerful driver of commerce on the Internet that any restriction on links and referrals is a serious barrier to economic activity.
4. Be mindful of how remedies can threaten and shape the integrity or architecture of the Internet. Decisions made today can have lasting results.
5. Avoid taking actions that will empower foreign regimes to censor the Internet. The United States has led the world in promoting free speech; our example cannot be allowed to give authoritarian regimes any excuse to go backwards.
6. Recognize the difference between copyright infringement and counterfeits. A one-size-fits-all approach towards trademarks and copyright may not be appropriate.

In regulating copyright, the law is regulating a form of speech. Addressing these issues in the context of the Internet--a potent outlet for free speech of all sorts--adds additional delicacy to these undertakings. Any technical mechanism that can be used to remove infringing content can be abused to remove disfavored, but constitutionally protected, speech. Any legal remedy that can enjoin the distribution of content can be misapplied or misused in the restraint of speech. This means that both technical and legal measures must be narrowly tailored both in their defined targets for action, and in the scope of the effects of their remedies.

Proposed remedies against online infringers must also take into account the evolving nature of the Internet and the businesses that rely upon it. Overbroad mechanisms can chill not only speech, but also investment in new distributed technologies.

Criminal copyright infringement is infringement committed “willfully” and in the context of various specific circumstances. Significantly, the websites targeted in the most recent ICE action appear to have merely linked to infringing content. That is, they did not themselves violate any of the exclusive rights of copyright owners that would constitute direct infringement. The ICE agent who signed the affidavit explicitly states that the ten seized domains point to what he calls “linking” websites—i.e., websites that contain “links to files on third party websites that contain illegal copies of copyrighted content.” (He also points out that these linking sites “are popular because they allow users to quickly browse content and locate illegal streams that would otherwise be more difficult to find.” Sound like any search engines you know?)

1. How does ICE and DoJ measure the effectiveness of Operation In our Sites and domain seizures more broadly -- how does the government measure the benefits and costs of seizing domain names?
   
2. Of the nearly 100 domain names seized by the Obama Administration over the last 9 months, how many prosecutions were initiated, how many indictments obtained, and how were the operators of these domain names provided due process?
   
3. What is the process for selecting a domain name for seizure and, specifically, what criteria are used?
   1. Does the Administration make any distinction between domain names that are operated overseas and those that are operated in the U.S.?
      
   2. Does the Administration consider whether a domain name operated overseas is in compliance with the domestic law from which the domain name is operated?
      
   3. What standard does the Administration use to ensure that domains are not seized that also facilitate legitimate speech?
      
   4. What standards does ICE use to ensure that it does not seize the domain names of websites the legal status of which could be subject to legitimate debate in a U.S. court of law; how does ICE ensure that seizures target on the true "bad actors?"
4. Does the Administration believe that hyperlinks to domain names that offer downloadable infringing content represent a distribution of infringing content, or do they represent speech?
   
5. Does the Administration believe that websites that facilitate discussion about where to find infringing content on the Internet represents speech or the distribution of infringed content? What if the discussion on these websites includes hyperlinks to websites that offer downloadable, infringing content?
   
6. What standard does DoJ expect foreign countries to use when determining whether to seize a domain name controlled in the U.S. for copyright infringement?
   
7. Did DoJ and ICE take into account the legality of Rojadirecta.org before it seized its domain name? If so, did DoJ and ICE consult with the Department of State or the United States Trade Representative before seizing this site in order to consider how doing so is consistent with U.S. foreign policy and commercial objectives?
   
8. In an affidavit written by Special Agent Andrew Reynolds, he uses his ability to download four specific songs on the domain name dajaz1.com as justification for seizure of this domain name. According to press accounts, the songs in question were legally provided to the operator of the domain name for the purpose of distribution. Please explain the Administration's justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.
   
9. Can you please provide to me a list of all the domain names seized by the Obama Administration since January of 2009 and provide the basis for their seizure?
   
10. Do ICE and DoJ keep a record of who meets with federal law enforcement about particular domain names? If not, would you consider keeping such a record and making it publicly available, to ensure transparency in government and that Operation in our Sites is not used to create competitive advantages in the marketplace?

You really should visit and talk to some companies that are living this experience. There is no way to file a legal law suit in every instance someone is stealing my D'Addario Strings trademark. We are family owned business in the USA with sales of $150 million. Sounds big, and rich and all that!!! However last year we spent $750,000 on legal battles and got nowhere. We would be bankrupt trying to protect the 1000 jobs that we provide here in the USA. We are not General Motors, IBM or NIke. The scale is not there.

If we were allowed legitimate access to the Chinese market and the Chinese were not counterfeiting our product we would be able to create 200 to 500 more jobs in the USA.

Don't paint everyone with a broad stroke of the brush. Telling the companies on the list to work harder is an insult. We work as hard as we possibly can already (its 5:30 AM where i am right now and dont stop working until 6:30 PM.

I have personally visited stores in four Chinese cities to see 7 out of 10 sets of my brand of strings are fake. The packaging is perfect, right down to the American flat and the words "Printed and Made in USA". The strings are shxt.

I wonder how that would make you feel if you started a brand name from nothing in 1974 and built it to the largest in the world only to watch people completely rip it off.

So your suggestioin to me is to work harder and sue everyone? I may as well close up or cash out and watch the 1000 jobs evaporate. Or better, maybe i should move the factory to China and destroy another 1000 US jobs?

Go on Alibaba.com and witness the hundreds of thousands of fake product listings. There is nothing on the site that is real or legitimate. At some point the government has to take some kind of police action. This is not just a civil matter, there are criminal (grand larceny) implications here.

I agree there should be due process before a site is shut down. I dont know what that process should be, but when threre is clear evidence submitted to a government agency that a site is selling fake merchandise the government should have some authority to put a URL on hold until they can defend themselves. Let the theives absorb the burden of defending themselves, don't expect the legitimate folks to foot the bill.

How is possible for the public to ask the legitimate manufacturers to bear the role of the government and police every instance of fraud with a law suit? It would be tens of millions of $$$ a year.

Learn more before developing such strong views and 'black listing' good people.

Jim D'Addario - CEO D'Addario and Company

I agree there should be due process before a site is shut down. I dont know what that process should be, but when threre is clear evidence submitted to a government agency that a site is selling fake merchandise the government should have some authority to put a URL on hold until they can defend themselves. Let the theives absorb the burden of defending themselves, don't expect the legitimate folks to foot the bill.

"Senator Wyden has long worked with U.S. industry on combating the trafficking of counterfeit goods like fake shoes and apparel. But going after trade in real merchandise can be done in a variety of effective ways, like inspecting shipping containers at American ports of entry to identify and seize fake merchandise.

"Unfortunately, the content industry has piggybacked on the legitimate efforts of apparel designers to combat counterfeit goods and now threaten the integrity of the Internet as a means to combat intellectual property infringement. The Internet is too important to our economy and to advancing American values to be inappropriately regulated and censored under the guise of protecting IP, which is why Congress and the Administration should be as cautious as it is surgical when it aims its sights on the Internet."

What COICA proposes would induce, and in some cases, force ISPs -- including yours -- to block websites for you without your input. The Internet is a global phenomenon and at OpenDNS we serve a global audience with customers around the world. If we are forced to block something due to a mandate by the U.S. federal government it would impact all our users, not just those in the U.S. That's a terrible precedent for the U.S. government to set.

Furthermore, as we've seen with the ongoing Wikileaks.org saga, the government will try and utilize whatever resources it can to take sites offline. There is absolutely no need to arm them with a tool to automate it, let alone one that sits outside of any judicial review as COICA does.

Blocking a domain name is black and white act, meaning that if the Justice Department decided that one aspect of a website was enough to make infringement "central" their only recourse would be to block the entire website rather than systematically removing the infringing portion. For many sites this would lead to massive censorship of data and speech that was non-infringing.

Additionally, as argued by plaintiffs, the Act allows 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.... Plaintiffs compare this burden to the permanent ban on the publication of a newspaper with a certain title, Near v. Minnesota, 283 U.S. 697 (1931), or a permanent injunction against showing films at a movie theater, Vance v. Universal Amusement Co., 445 U.S. 308 (1980). In Near, the Court examined a statute that provided for a permanent injunction against a "malicious, scandalous, and defamatory newspaper, magazine or other periodical." ....

There are some similarities between a newspaper and a web site. Just as the content of a newspaper changes without changing the title of the publication, the content identified by a URL can change without the URL itself changing.... In fact, it is possible that the owner or publisher of material on a web site identified by a URL can change without the URL changing. .... Moreover, an individual can purchase the rights to a URL and have no way to learn that the URL has been blocked by an ISP in response to an Informal Notice or court order.... Despite the fact that the content at a URL can change frequently, the Act does not provide for any review of the material at a URL and, other than a verification that the site was still blocked thirty days after the initial Informal Notice, the OAG did not review the content at any blocked URLs....