Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law
from the you-said-what-now? dept
Eric Goldman was kind enough to send over the affidavit that Homeland Security used to seize the domains this time around (it's embedded below), but as we saw last time around, the affidavit itself is chock full of legal and technical errors, compounded by assertions-as-facts that seem to have little basis in reality. This is immensely troubling, especially given that the specific legal issues here are hardly settled law, and Homeland Security seems to be acting as if these cases are no brainers, allowing them to flat out seize domains, even when those websites have been declared perfectly legal in their home countries.
The biggest problem is that Homeland Security seems to suggest -- without a hint of doubt -- that merely linking to infringing content is criminal copyright infringement. That is a huge stretch. The affidavit appears to make it clear that it believes that these sites are guilty of direct criminal copyright infringement, rather than any sort of contributory copyright infringement. As we've discussed in the past, the courts have tended to say that embedding and linking can be contributory infringement, but not direct infringement. Homeland Security and ICE may be in for a bit of legal trouble trying to prove that embedding is direct infringement.
As with the last batch of seizures, it quickly becomes clear that Homeland Security was taking orders from private companies, and made absolutely no effort whatsoever to determine if the assertions made by those private parties (who might be helped by having Homeland Security shut down competitors and/or more innovative solutions) were accurate. For example, the affidavit, written by yet another recent addition to the Homeland Security force (though, unlike last time, when it was a kid fresh out of college, this time the guy, agent Daniel Brazier, was a police officer before this job came calling) seems to rely solely on information from various sports leagues (the NFL, NBA, NHL, WWE and UFC -- I'm really surprised that MLB isn't included, but that's probably only because it's the off-season), and appears to make no attempt to independently verify much of the information provided by those leagues. For example, without any evidence or proof, he asserts that the leagues "suffer significant negative impact from the unauthorized streaming of live television programming."
You would think that such an assertion would require proof. There is none. There are more assertions related to this, but no evidence that wider distribution of the video (including the commercials) does any actual harm. Agent Brazier claims that because of these streams, it impacts the league's ability to sell game tickets. This is laughable. Years ago, these same sports leagues would claim that having games shown on TV "hurt" the ability to sell tickets. Only recently have some of the leagues realized this is simply untrue. Larger audiences lead to more connected fans, meaning more fans willing to come out to see games live, because they know that the live experience is totally and completely different than the on-screen experience.
I find it disturbing that Homeland Security would repeat this blatant myth in order to support suppressing and censoring websites.
There are some other issues as well. Part of the argument against atdhe.net, ilemi and channelsurfing.net is that they embed from elsewhere online streams from MSNBC. MSNBC apparently told Agent Brazier that it "had not authorized third party distribution over the internet of its broadcasts" by these sites. One little problem: if I go visit MSNBC TV, I see live streaming of content from the channel. And, if I click on the "clip & share" link, I am given an option to embed the stream. Yup. It certainly looks like MSNBC does, in fact, give permission to embed its content on other sites. Anyway, I've embedded some video below from MSNBC. I'm curious if this makes Techdirt a criminal enterprise. Perhaps I'll find out after Homeland Security seizes our domain.
Finally, it appears that every one of these sites clearly stated that it did not host any content, and that it obeyed the local laws from where the server was located. The affidavit mentions this each and every time... and then doesn't seem to care at all about this. Now, the argument against this, of course, is that Homeland Security doesn't care one bit about the laws in other countries, and is only concerned about the laws in the US. That's all well and good... in theory. But reality makes this a bit more complex. If the website is hosted and operated in a foreign country, claiming that the domain name itself is subject to US laws seems like a huge stretch, and will only serve to increase concerns from foreign countries that the US government has too much control over the internet. Even worse, in the case of Rojadirecta, Agent Brazier seems to flat-out admit that the site targets people in Spain by highlighting how much traffic it gets in Spain. So if the site is hosted in Spain and clearly targets people in Spain -- and the affidavit admits this -- why is a US court saying the domain can be seized?
Unlike last time, when the magistrate judge in question literally rubber stamped the affidavit, at least magistrate judge Frank Maas appears to have decided to really sign this document. However, there is no indication that he followed the rules required under Fort Wayne Books v. Indiana, which requires a higher standard than probable cause when attempting to take "materials presumptively protected by the First Amendment" out of circulation. There is no indication that any effort is made to surpass these basic First Amendment hurdles. There is no indication that the judge took the time to find out whether or not these seizures were required to preserve evidence, as case law suggests is necessary in such circumstances.
Once again, it appears that Homeland Security is acting as something of a rogue cowboy operation, where it feels no compunction about seizing domains under an extremely questionable legal theory that linking or embedding is somehow direct copyright infringement. I've now spoken to numerous lawyers about this, and I can't find one who thinks this is a clear case of criminal copyright infringement. Similarly, there are serious questions concerning the fact that these websites are all hosted in foreign countries, and all of them made it clear that they sought to obey the laws in their own countries. Even more amazing is that despite the fact that many of these issues were raised previously, Homeland Security has simply decided to forge ahead. One hopes that a court will put a stop to these seizures before too long.