We're obviously thrilled that after 18 months it looks like we will get the domain names back. I think this is a sign that you can stand up for what's right in copyright law and win.

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.

...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’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...."

Although the Second Circuit held in 1943 that willful intent in the criminal copyright context need only be shown as to the intent to copy the works, and not as to the intent to infringe the copyright... recent decisions in the Second Circuit in civil cases have made clear that "[t]he standard is simply whether the defendant had knowledge that its conduct represented infringement or perhaps recklessly disregarded the possibility."

As an initial matter, Title 17, United States Code, Section 506(a) "does not require that a defendant actually realize a commercial advantage or private financial gain. It is only necessary that the activity be for the purpose of financial gain or benefit.".... Moreover, courts have held that "[f]inancial benefit exists where the availability of infringing material 'acts as a "draw" for customers.'" ... It appears that Puerto 80's revenue and profitability are directly dependent upon increases in user base and enhanced Internet traffic to the website. Thus, even if Puerto 80 does not directly profit by receiving payment from the sites to which it links that stream the content, in at least some sense, Puerto 80 apparently benefits financially from making available copyright protected works on the Rojadirecta website.

the Government's investigation has revealed that the CEO of Puerto 80, the owner of the Rojadirecta Domain Names, has in fact received thousands of dollars since at least October 2005 from Google AdSense, a free program that allows website publishers to earn revenue by displaying advertisements that are likely to be relevant and of interest to users of those websites.

The impact on speech resulting from domain-name seizure is far beyond what is necessary to further the government interest. The government alleges that links (located on pages accessible through Petitioner’s domain names) to infringing content -- i.e., pointers to content accessible elsewhere on the Internet -- constituted criminal copyright infringement.... By seizing Petitioner’s domain names, however, the government blocked access to all content contained on Petitioner’s site, including obviously non-infringing content, such as user-created forums, discussions, and technical tutorials....

This tactic, as discussed above in Section III, was dramatic and unprecedented. While the government may pursue actions that further important interests, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.” Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637 (1980) (citing Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620 (1976)). “Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone . . . .” NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted).

Decisions of foreign courts are not binding on the U.S. judiciary; however, it is a “well-settled rule” that unless the findings offend fundamental standards of procedural fairness or public policy, foreign judgments are generally conclusive. See Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 408 (2d Cir. 2009) (citing Ackermann v. Levine, 788 F.2d 830, 837 (2d Cir. 1986)); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 457 (2d Cir. 1985) (“comity will be granted to the decision or judgment of a foreign court if it is shown that the foreign court is a court of competent jurisdiction, and that the laws and public policy of the forum state and the rights of its residents will not be violated.” (emphasis added)). Cf. Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 631 (2d Cir. 1976) (holding that “a foreign judgment may not be collaterally attacked ‘upon the mere assertion of the party that the judgment was erroneous in law or in fact’” and requiring “[c]lear and convincing evidence” to attack a foreign judgment) (internal citations omitted))....

[....]

In the case of Rojadirecta, that standard was not applied, much less met. There is no reason to believe the Spanish rulings were procedurally unsound or offensive to public policy. Indeed, on the limited facts available in the record, U.S. copyright law may have dictated the same outcome, at least in the context of criminal infringement.

The effect may be felt well beyond the commercial context. Simply put, if the United States courts allow — with no adversarial hearing and on a low legal standard — the seizure of foreign-based content that is lawful in the home country, then that will set an example for other countries to seek to seize U.S.-based speech that is perfectly lawful in this country. As one example, U.S.-based websites have provided a crucial safe haven for political speech, including speech that is critical of foreign governments, in part because U.S. law offers strong protections for political commentary. If such a website were seized by a foreign government (even though the content is hosted in the U.S.), that action would likely be subject to intense criticism, including disapproval by the U.S. government. Unfortunately, it would be all too easy for the foreign censor to cite to the circumstances of this case as reason to ignore such criticism. Once the United States goes down the path of seizing websites hosted around the world, we will be less able to complain when other countries turn around and do the same thing to speech hosted here.

Contrary to the grounds on which the domain names were seized, the Rojadirecta site is not violating copyright law, let alone criminal copyright law. Rojadirecta explained this to the government when, on February 3, 2011, it sent ICE and the Department of Justice a letter requesting immediate return of the subject domain names pursuant to 18 U.S.C. § 983(f). Following that letter, counsel for Puerto 80 Projects, S.L.U. (“Puerto 80” or “Petitioner”), the company which owns the sites, repeatedly tried to discuss the seizure with the government, but was unable to engage with the government until it notified the U.S. Attorney’s Office of its intent to seek a temporary restraining order and file a petition for immediate return of the seized domain names. It was not until then that Puerto 80 was able to have a substantive conversation with the appropriate officials. Hoping to avoid burdening the court, Puerto 80 held off filing the instant petition pending the outcome of those negotiations. On May 26, 2011, the government informed counsel for Puerto 80 that the only acceptable “compromise” would entail Puerto 80 prohibiting its users from linking to any U.S. content anywhere on its sites. Because this “solution” would prohibit Puerto 80 from engaging in lawful acts not prohibited by copyright law, Puerto 80 chose instead to challenge the seizure in court.

The seizure imposes another hardship on Puerto 80, in that it constitutes an invalid prior restraint and suppresses its users’ and readers’ protected First Amendment activities. See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (“[W]hile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause . . . ., it is otherwise when materials presumptively protected by the First Amendment are involved.”). See also Maryland v. Macon, 472 U.S. 463, 468 (1985) (“The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, and requires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such circumstances.”) (internal citation omitted); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, n.5 (1979) (noting that the First Amendment imposes special constraints on searches for, and seizures of, presumptively protected materials). 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.

In Center for Democracy & Technology v. Pappert, 337 F. Supp. 2d 606, 619 (E.D. Pa. 2004), the Eastern District of Pennsylvania struck down, on First Amendment grounds, a Pennsylvania statute that permitted the state’s Attorney General or a district attorney to seek a court order requiring an Internet Service Provider (“ISP”) to “remove or disable items residing on or accessible through” the ISP’s service upon a showing of probable cause that the item constituted child pornography. The district court found that the statute imposed an unconstitutional prior restraint on speech. It concluded that under Fort Wayne Books and Bantam Books v. Sullivan, 372 U.S. 58 (1963), a court must “make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation.” Pappert, 337 F. Supp. 2d at 657 (emphasis added). The court further noted that the state statute “allow[ed] 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.” Id.

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. The site’s owner was not provided any advance notice, nor was he 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. Because case law is clear that “mere probable cause to believe a legal violation has transpired is not adequate to remove [protected material] from circulation,” Fort Wayne, 489 U.S. at 66, the seizure of the expressive materials in this case violates the First Amendment. See also Pappert, 337 F. Supp. 2d at 657 (finding that a procedure that permits a judge to make an ex parte finding of probable cause that material is child pornography, with no opportunity for the content publisher to receive notice or be heard, violates the First Amendment). This First Amendment deprivation extends not just to registered users of Rojadirecta, but also to anyone wishing to visit the website. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (“[T]he protection afforded is to the communication, to its source and to its recipients both.”); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (“It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences . . . . That right may not constitutionally be abridged . . . .”).

Indeed, several courts have held that the act of indexing and linking to copyrighted material— which was the government’s basis for seizing the domain names—is not direct or indirect copyright infringement. See Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006); see also Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654 HLH(BQRX), 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (finding that hyperlinking to other sites does not constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, (SHS) 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement); 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.”).

Puerto 80 does not host any infringing material on the websites which operate under the subject domain names... In the same way a search engine or other site which aggregates links to existing material on the Internet, Rojadirecta provides an index of links to streams of sporting events that can already be found on the Internet through a search for those sites or simply by typing the URL for the site directly. Id. Such activity does not constitute direct copyright infringement, much less criminal infringement. See supra, at note 8. Indeed, United States Senator Ron Wyden (D-Or) made this point in a letter he wrote to ICE Director John Morton and Attorney General Holder expressing concern over the government’s seizure of the subject domain names....

Puerto 80’s operation of the Rojadirecta site does not constitute contributory infringement because the subject domain names are capable of—and are, in fact, used for— substantial non-infringing uses. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, reh’g denied, 465 U.S. 1112 (1984); Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481, 517-18 (S.D.N.Y. 2010) (summary judgment inappropriate where material fact existed as to whether file-sharing program, which was “used overwhelmingly for infringement,” is “capable of substantial non-infringing uses.”).

Nor is Rojadirecta a site devoted simply to linking to such streams. In addition to providing a forum for discussion on sports, politics, and a variety of other topics, the Rojadirecta site enables users to post links to authorized sports broadcasts. For example, on Saturday, February 12, 2011, the Rojadirecta site (hosted on the rojadirecta.es domain name) provided a link to “9:30am Hockey (NHL): Los Angeles – Washington.”... Clicking on this link opened a new window for the Yahoo! sports website for the National Hockey League, and provided a live stream of the match between the Los Angeles Kings and Washington Capitals. Id.

Nor does Puerto 80’s operation of the Rojadirecta site constitute vicarious liability because it does not have “a right and ability to supervise that coalesce[s] with an obvious and direct financial interest in the exploitation of copyrighted materials.” Softel, Inc. v. Dragon Med. & Sci. Commc’ns Inc., 118 F.3d 955, 971 (2d Cir. 1997) (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (emphasis added)). Puerto 80 does not receive any revenue that is derived from specific content hosted on, or streamed by, the sites to which it links.... In other words, Puerto 80 does not receive any revenue from any site to which a user can link from the subject domain names based upon the content of that site. Id. To the extent there is any site to which Rojadirecta links that contains infringing material, Puerto 80 receives no specific financial benefit from a user clicking through to that site and viewing such content.... Because Puerto 80’s revenues are not tied to whether or not infringing material is linked to or accessed, the government cannot show that Puerto 80 has a “direct financial interest in the exploitation of copyrighted materials” which “coalesce[s] with” any right or ability to supervise what is linked to on the site. See Artists Music, Inc. v. Reed Publ’g (USA), Inc., Nos. 93 civ. 3428(JFK), 73163, 1994 WL 191643, at *6 (S.D.N.Y. May 17, 1994) (direct financial benefit not established where defendant leased space at a trade show for a fixed fee to exhibitors who played infringing music, but defendant’s revenues were not dependant on whether exhibitors actually played music or what they played); Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 521 (S.D.N.Y. 2010) (in DMCA safe-harbor context, “financial benefit directly attributable to the infringing activity” not established “where the infringer makes the same kind of payment as non-infringing users of the provider’s service”) (quoting Senate Judiciary Committee Report and the House Committee on Commerce Report, H.R. Rep. No. 105-551, pt. 2 (1998)).