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. icon
    Karl (profile), 7 Sep 2011 @ 11:12pm


    First off, no speech was shut down. The rojo websites are still up.

    Speech at a specific venue was shut down. A long history of First Amendment case law says this can be prior restraint as much as outright blocking the speech.

    Second, the speech in question (infringing copyrighted streaming of sporting events) is likely not protected speech.

    Zero percent of the speech on the Rojadirecta site was such speech. They do not actually stream anything; they merely link to those streams.

    This means that 100% of the speech that was suppressed is protected speech. It also means that no infringing speech whatsoever was supressed. The conent is still up at the websites that actually stream the content; that speech was not blocked or supressed in any way whatsoever.

    Third, if Rojo didn't want to be subject to US law, they should make their website both unavailable in the US and not registered with a US company.

    First of all, it's almost impossible to make any website unavailable in the U.S. Even the BBC can't do it, and they try.

    Second of all, everyone who wants a .com gTLD has to register with a U.S. company. Seeing as this is the most desirable gTLD of the entire internet, including overseas companies, this demand would drastically reduce all foreign countries' internet presence. Furthermore, unless it is specifically a ccTLD (like .uk or .nz), gTLD's are supposed to be region-neutral.

    Their facilitation argument is pretty transparent as well, because they know that search engines are not specifically intended nor narrowly focused on infringement.

    None of that means that they "facilitated" anything. They do not upload content. They do not make it easier for anyone to upload content. They do not give material assistance to the primary infringers, even after the fact. None of that is even alleged in the Government's complaint.

    The only thing they do is the same thing search engines do: provide links to content, much of which is infringing, some of which is not. Their "intent" or "focus" is completely irrelevant in this regard.

    They are trying hard, but they keep trying to act like they are doing nothing wrong by US law.

    They did nothing wrong under U.S. law, since U.S. law does not cover any infringement that occurs outside of the U.S.

    Keep in mind that streaming is considered a performance under U.S. copyright law, not reproduction or distribution. This means that even if someone in the U.S. watched the streams, they were not breaking U.S. laws, because people who watch an infringing performance (unlike those who make infringing copies) have not broken any U.S. law whatsoever. Just like you can't arrest or sue anyone who was in the audience at a show where a band performed an infringing cover song.

    The government has not actually named any infringement whatsoever that happened in the U.S. They do not allege that the streaming content was on any U.S. server, or that anyone in the U.S. actually uploaded anything. They have not presented one shred of evidence that any infringement at all happened within U.S. jurisdiction.

    If Rojadirecta did "aid and abett" anything - which they did not - then it "aided and abetted" infringement outside the U.S. jurisdiction; and that facilitation, itself, was entirely outside U.S. jurisdiction.

    But let's pretend they were in the U.S. Would they have broken any criminal law? No. Would they have "aided and abetted" the breaking of any criminal law? No. The only criminal law that might have been broken is by the primary infringer - the uploader. The only ones who could be said to "aid and abett" that infringement are the sites that actually stream that content. And the crime itself is, at most, a misdemeanor - even for repeat offenses.

    Furthermore, if they were in the U.S., then they could simply follow the notice-and-takedown system, and be free from any liability whatsoever. (Of course, since they're not in the U.S., they are under no obligation to follow those rules - only the ones in their home jurisdiction, i.e. Spain, which two Spanish courts said they did.)

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