Puerto 80 Responds Forcefully To DOJ's Claims Concerning Domain Seizures

from the government-overreach dept

While Puerto 80 has already appealed the rejection of its attempt to get back its domain names (the two rojadirecta domains that Homeland Security seized), the separate case, involving the permanent forfeiture of those domains, continues. As you may recall, Puerto 80 put forth its motion to dismiss, noting that the government appeared to be wholly making up a legal standard that doesn't exist, while also showing that Puerto 80 did not break criminal copyright law. The government responded bizarrely by trying to argue that Puerto 80's actions don't really matter, because it's not about Puerto 80... and then spent most of its brief explaining why Puerto 80 did things that broke the law.

Now Puerto 80 has responded, and this time it's coming out even more forcefully against the government, explaining how its theory for seizure and forfeiture is absolutely ridiculous, and would effectively allow the government to seize all sorts of property if it so chose, including any search engine domain, any telephone network infrastructure, any electrical company's infrastructure -- just because such tools could be shown to have been used by someone, somewhere, possibly for illegal purposes, even if the company in question had nothing to do with it:
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.
As the filing notes, "this cannot be the law." And, almost certainly, it's unconstitutional.

The full filing (embedded below) is fantastic. It no longer dances around the issue and flat out points out that the government's argument is incoherent, pulling different actions from different actors together to try to pretend that a single party did something wrong.
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.
Specifically, Puerto 80 points out that in order to show criminal copyright infringement, the government needs to show that a party willfully infringed for profit. But it doesn't do so. It shows that some people may have infringed. And it shows that Puerto 80 may have profited. But it does not (and cannot) show that Puerto 80 itself willfully infringed for profit. In fact, it doesn't even try, because it knows that Puerto 80 itself did not infringe directly.

Finally, Puerto 80 points out that even if the government's argument is accurate, then the law must be unconstitutional:
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.
It's nice to see Puerto 80 hitting much harder on these key points, which it seemed to skirt around in the earlier filings. I'm wondering if the Justice Department even realizes how screwed up the argument it's trying to make really is. It never shows any criminal copyright infringement, but then says it can simply seize a domain because of some criminal copyright infringement which doesn't even appear to exist. The whole thing is incredible. Hopefully the court recognizes this and smacks the Justice Department around a bit for its ridiculous claims in trying to take these domains.

Filed Under: copyright, criminal copyright infringement, doj, domain seizures, forfeiture, rojadirecta, seizures
Companies: puerto 80, rojadirecta

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  1. identicon
    Anonymous Coward, 7 Sep 2011 @ 12:03pm


    Why haven't ICE seized Baidu yet?
    Why is Dell inking a deal to produce tablets and cellphones with one of the biggest copyright infringer on the planet?

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