Other complaints have been raised by websites seized under "In Our Sites" that bear similarities to the Dajaz1 case. These complaints center around unnecessary delays in advancing and resolving cases, difficulty in obtaining documents from the government that are fundamental to the underlying cases (such as affidavits), and difficulty even maintaining contact with the U.S. Attorneys prosecuting the cases. The effect of these problems is to severely limit the ability of website owners to challenge the legality and merits of the domain name seizures.

For the feds, it’s not enough to simply seize domain names without warning or due process—they want to make sure everyone knows the website operators were breaking the law, even if that has yet to be proven in court. That’s why every domain that gets seized ends up redirecting to one of these dramatic warning pages, replete with the eagle-emblazoned badges of the federal agencies involved. You know the one I mean:

I thought eagles were solitary birds—but apparently they'll flock anywhere the RIAA points. At least that seemed to be the case with the hip-hop blog Dajaz1, which was treated to a year of Promethean pecking while the court waited patiently for the RIAA to fail to produce any evidence.

And that's just one of over 700 websites seized without due process. The first round of seizures, commencing the so-called Operation In Our Sites (which I suggest renaming to Operation Motherfucking Eagles), was announced from Disney headquarters, possibly by a tyrannical Mickey Mouse, but more likely by ICE Director John Morton sporting a dumb grin over the presence of whatever movie stars Disney managed to rustle up for the event. It's Chinatown Hollywood. The only place where eagles and mice get along.

To commemorate the fruits of this alliance, I created the Seized Tee for Techdirt's new Insider Shop. Government regulations prevent us from directly replicating agency badges, but that proved to be a plus, since I think I have drastically improved them in terms of both clarity of purpose and, more importantly, overall eagle-ness, which was clearly a prominent factor in their original design:

Buying the Seized Tee also gets you access to the Techdirt Crystal Ball for one year, two First Word/Last Word credits, and an Insider Badge on your profile and comments. Wear it with pride, and when people ask you about it, be sure to tell them that this kind of government censorship is a real thing that is happening as we speak, and it's a problem that's only going to get worse if it goes unchecked. Eagles do not beget doves.

The fingerboards of our guitars are made with wood that is imported from India. The wood seized during the Aug. 24 raid, however, was from a Forest Stewardship Council-certified supplier, meaning the wood complies with FSC's rules requiring that it be harvested legally and in compliance with traditional and civil rights, among other protections. Indian authorities have provided sworn statements approving the shipment, and U.S. Custom allowed the shipment to pass through America's border and to our factories.

Nonetheless, the U.S. Fish and Wildlife Service decided to enforce its own interpretation of Indian law, arguing that because the fingerboards weren't finished in India, they were illegal exports. In effect, the agency is arguing that to be in compliance with the law, Gibson must outsource the jobs of finishing craftsmen in Tennessee.

This is an overreach of government authority and indicative of the kinds of burdens the federal government routinely imposes on growing businesses. It also highlights a dangerous trend: an attempt to punish even paperwork errors with criminal charges and to regulate business activities through criminal law. Policy wonks call this “overcriminalization.” I call it a job killer.

Many business owners have inadvertently broken obscure and highly technical foreign laws, landing them in prison for things like importing lobster tails in plastic rather than cardboard packaging (the violation of that Honduran law earned one man an eight-year prison sentence). Cases like this make it clear that the justice system has strayed from its constitutional purpose like stopping the real bad guys from bringing harm.

The sheer volume of modern law makes it impossible for an ordinary American household to stay informed. And yet, prosecutors vigorously defend the old legal maxim that "ignorance of the law is no excuse." That maxim may have been appropriate for a society that simply criminalized inherently evil conduct, such as murder, rape, and theft, but it is wholly inappropriate in a labyrinthine regulatory regime that criminalizes activities that are morally neutral. As Professor Henry M. Hart opined, "In no respect is contemporary law subject to greater reproach than for its obtuseness to this fact."

It is absurd and unjust for the government to impose a legal duty on every citizen to "know" all of the mind-boggling rules and regulations that have been promulgated over the years. Policymakers can and should discard the "ignorance-is-no-excuse" maxim by enacting a law that would require prosecutors to prove that regulatory violations are "willful" or, in the alternative, that would permit a good-faith belief in the legality of one's conduct to be pleaded and proved as a defense. The former rule is already in place for our complicated tax laws — but it should also shield unwary Americans from all of the laws and regulations as well.

The Federal Rules of Criminal Procedure prescribe specific requirements for serving a summons on a corporate defendant in a criminal case. These requirements are neither vague nor optional – they quite explicitly require both service upon an agent of the corporation and a mailing to the corporation’s last known address within the United States. The Federal Rules do not contemplate service of a criminal summons on a wholly foreign corporation without an agent or offices in the United States. Wholly foreign corporations, therefore, may not be prosecuted for alleged violations of federal criminal law unless they waive service. In short, a corporation such as Megaupload cannot be brought within the jurisdiction of this Court for criminal proceedings absent its consent.

Federal crimes are delimited by statute. It is for Congress, not for the courts, to say (and to warn) what constitutes a crime. Dowling, 473 U.S. at 213-14 (quoting United States v. Wilberger, 5 Wheat. 76 (1820) (“It is the legislature, not the Court, which is to define a crime, and ordain its punishment”)). Courts interpreting penal statutes will exercise restraint and adopt a narrow statutory interpretation unless Congress has definitely indicated that it intended a harsher reading. Id. Because “[t]he Copyright Act does not expressly render anyone liable for infringement committed by another,” Sony Corp. of Am. v. Universal Studios, 464 U.S. 417, 434 (1984), reh’g denied, 456 U.S. 1112 (1984), the Act cannot be read to make secondary infringement a crime.

These omissions are not small, they are not subtle, they are not few, and they are not inconsequential. The Government has attempted to make out an all-encompassing case of an alleged criminal copyright conspiracy without bothering to allege concrete specifics of the actual infringement allegedly committed. It has attempted to build one of “the largest criminal copyright cases ever brought by the United States” out of conclusory ipse dixit, reciting statutory verbiage and nothing more. Certainly Counts Four through Eight do not reflect facts supplying requisite probable cause.

The Government seeks forfeiture of all of Defendants’ revenue because it has assumed all of the revenue is tainted by crime. But there is no probable cause to support that assumption, which by no means follows from—and is, indeed, at odds with—acknowledged aspects of Megaupload’s business that stand well removed from the alleged infringement. To put matters in perspective, consider the maximum statutory fine that might be imposed upon Megaupload and the individual Defendants were they convicted on all five criminal counts, Counts Four through Eight, concerning the alleged copyright infringement: The maximum fine per count for a first offense of criminal copyright infringement under 21 U.S.C. § 506(a) would be $250,000 for the individual and $500,000 for the corporation, see 18 U.S.C. §§ 2319(b), 3571(b)(3), 3571(c)(3), such that imposing the fine upon these Defendants consecutively across all five counts would result in a combined fine of $7,500,000.00. Yet tens of millions of dollars, more than ten times the amount of that maximum fine, have been seized from these Defendants as derived from the business. The math does not compute.

The Government’s shuttering of Megaupload, purely on its own ipse dixit, is a modernday throwback to the unconstitutional prior restraints on speech that are a notorious enemy of the First Amendment. In Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), for instance, the State of Indiana filed a civil action against several owners of adult bookstores alleging RICO violations and, based on an ex parte showing of probable cause, seized “the real estate, publications, and other personal property comprising each of the three bookstores operated by the corporate defendants.” Id. at 51. Even assuming that the seized materials were obscene, and thus unprotected, the Court held that “our cases firmly hold that mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.” Id. at 66; see United States v. Jenkins, 974 F.2d 32, 35 (5th Cir. 1992) (“It is, of course, well-settled that the government may not seize presumptively protected expressive materials without a prior judicial determination of obscenity”). The bottom line is that the Government cannot order seizure of “literally thousands of books and films [to be] carried away and taken out of circulation by [a] pretrial order” until “the claimed justification for seizing books or other publications is properly established in an adversary proceeding.” Fort Wayne Books, 489 U.S. at 67; see, e.g., Multi-Media Distributing Co., Inc. v. United States, 836 F. Supp. 606, 614 (N.D. Ind. 1993)...

Here, the Government has effectively accomplished what Fort Wayne Books foreclosed. It has shuttered Megaupload, and, with it, a treasure trove of books, films, videos, photos, digital expression of every stripe, without any adversarial proceeding at all. What is more, if the Government had its way, 1,100-servers worth of that collection would have been wiped, with members of the public (including rightful owners of that material) left the poorer for it. In this sense, what the Government has done in this case raises further alarms, for it has seized not only allegedly infringing copies, but effectively taken down everything that was on Megaupload.com, taking works out of circulation entirely. See Heller v. New York, 413 U.S. 483, 492 (1973) (explaining that “a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause” but it is when a book or film is “taken out of circulation completely” that the seizure rises to the level of a prior restraint). The parallels between this case and cases in which prior restraints have been denounced as unconstitutional are unsettling and, if nothing else, warrant heightened judicial skepticism and scrutiny

Additionally, there can be no serious argument that the Government has alleged that the Rojadirecta Domain Names' facilitation of the underlying copyright offense was anything but substantial. See Amended Complaint... ("At all relevant times, the links displayed on the main homepage of the Rojadirecta Website were purposefully aggregated and organized by the owner(s) and/or operator(s) of the Rojadirecta Website. Moreover, more than half of the material available on the Rojadirecta Website at any given time during law enforcement's investigation appeared to be dedicated to making infringing content available to users of the Rojadirecta Website.")....

Puerto 80's arguments about its own conduct are irrelevant and misapprehend the nature of the inquiry

Indeed, the Rojadirecta Domain Names were repeatedly noticed that they were linking to copyright infringing content.

Under the government’s construction of [the law], every domain name that pointed to a website containing links to infringing copies would “facilitate” and have a “substantial connection” to the offense of criminal copyright infringement, and would therefore be subject to forfeiture. The broad construction of the term “facilitation” the government seeks would give it the power to shut down google.com, yahoo.com, bing.com, or any of an array of other channels of communication that—like every site on the Internet—link to content provided by third parties that might or might not be infringing. The property in question is two domain names, which (in the government’s words) are merely “labels” that “resolve” to websites, and are distinct from the servers that host the website or any content of it....

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. There is no reason to think Congress intended the forfeiture statute to extend so broadly. And even if it had, Congress lacks the power to confer such plenary control over speech on government agents acting without judicial sanction.

The government argues that the links on the Rojadirecta website are not protected speech because they constitute copyright infringement. But that argument exactly misses the point of the prior restraint doctrine. Unless and until there has been a final determination on the merits after an adversary hearing, there is no basis to find that criminal copyright infringement occurred on the third party sites to which the Rojadirecta website linked.

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.

The raids forced Gibson to cease manufacturing operations and send workers home for the day while armed agents executed the search warrants. “Agents seized wood that was Forest Stewardship Council controlled,” Juszkiewicz said. “Gibson has a long history of supporting sustainable and responsible sources of wood and has worked diligently with entities such as the Rainforest Alliance and Greenpeace to secure FSC-certified supplies. The wood seized on August 24 satisfied FSC standards.”

Juszkiewicz believes that the Justice Department is bullying Gibson without filing charges.

“The Federal Department of Justice in Washington, D.C. has suggested that the use of wood from India that is not finished by Indian workers is illegal, not because of U.S. law, but because it is the Justice Department’s interpretation of a law in India. (If the same wood from the same tree was finished by Indian workers, the material would be legal.) This action was taken without the support and consent of the government in India.”

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."

Google changed its policy on pharmacy ads in February 2010, so that it would only take ads from U.S. pharmacies accredited by the National Association of Boards of Pharmacy, and from online pharmacies in Canada that are accredited by the Canadian International Pharmacy Association.