Oops: After Seizing & Censoring Rojadirecta For 18 Months, Feds Give Up & Drop Case

from the took-'em-long-enough dept

Looks like we've got something of a repeat of the Dajaz1 insanity, in which the US government seized and censored a website for over a year before giving up and handing the domain back -- though this time it's with Rojadirecta. You may recall the Rojadirecta case, where two domains have been held by the US government on a highly questionable legal theory for over a year and a half -- well, the government just dropped the case, and it appears that the domains will be returned.

The case began when ICE seized two Rojadirecta domains from the Spanish company Puerto 80. As we noted at the time, Puerto 80 had been found legal (twice) in Spain, so it was hard to fathom that there could be "willful" infringement here.

Of course, over time, the situation got even more ridiculous. As with Dajaz1 and other sites, the US Attorneys in charge of the case stalled when the site fought back. In the case of Rojadirecta, Puerto 80 decided to stop waiting and sued the government. From there, something of a comedy of errors by the government ensued, with bizarre and unsupportable claims, and (worst of all) repeated attempts to mix and match different pieces of the law to dance around the fact that there was no legal basis for the seizure and the whole thing was unconstitutional. Each time the feds would present an argument, as you picked it apart, you could see that even they didn't seem to understand the law.

It appears that someone over there finally figured it out. We'd been waiting a while to hear from the court, and the last thing we'd heard was Rojadirecta/Puerto 80 pointing to Judge Posner's recent ruling about how a site embedding clips from elsewhere isn't infringing. Some copyright maximalists insisted that this had nothing to do with Rojadirecta, and that Rojadirecta would still lose... but not everyone agreed.

Today the government filed a "voluntary dismissal" notice of the case against Rojadirecta.org and Rojadirecta.com. You can see the short dismissal notice below. What's unfortunate, of course, is that the government might now get away with this blatant censorship and disregard for basic due process, without a court ruling showing that it was an illegal move by the feds. In other words: without punishment, the feds may feel free to do this again. This is now the second (and third) example of the government seizing a domain and censoring it for over a year on a very questionable legal theory -- and when the pressure finally gets to be enough, the government turns tail and runs, giving back the domain with no explanation or apology for blatant censorship. That's unacceptable.

Mark Lemley, who was on the legal team defending Puerto 80, told me:
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.
That's true... but just the fact that they had to fight this for 18 months while the government held their domains raises serious questions about the government's actions here. It's probably not worth it for Puerto 80 to pursue things any further, but it's unfortunate that in both cases where people have fought back against the government's over-aggressive seizures of domain names, the government has tried to wait them out... and then finally admitted by default that it was wrong, and handed back the domains.

I expect that we may see a few more such cases as well. Unfortunately, though, we may not get a clear legal ruling telling the government it can't do this -- meaning that they'll be free to continue to abuse their powers in such a manner going forward.

Update: Added the letter that the DOJ sent with the dismissal notice, suggesting that the MyVidster ruling impacted their thinking...

Filed Under: censorship, copyright, criminal copyright law, doj, domain seizures, domains, free speech, ice, rojadirecta, seizures
Companies: puerto 80

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  1. icon
    average_joe (profile), 30 Aug 2012 @ 8:58am

    Re: Re: Re: Re: Re: Re:

    So you'd like to label this as just a fuck-up.

    A giant constitutional fuck-up.

    That isn't at all what I said. I'm happy to chat with you, but your purposeful misrepresentation is not appreciated.

    You, yourself, are persistent in ignoring the teaching of Marcus and A Quantity of Books. In Alexander, the court had no problem in identifying seizures as a mechanism for prior restraint. As a point of historical fact, the great English cases of the 1770's, Entick v Carrington and Wilkes v Wood were seizures in the service of censorship.

    Marcus v. Search Warrant is an obscenity case. What was seized was obscene materials. When it's obscenity, a mere affidavit is not sufficient. You need a judicial determination of obscenity. None of the Court's reasoning in Marcus applies when it's copyright, and no court has ever said that an affidavit is insufficient to take copyrighted materials or instrumentalities out of circulation. Why? Because there is no concern of censorship like there is with obscenity.

    The Copyright Act even provides for injunctive relief because prior restraint is not an issue when it's copyright. This point is critical, yet you completely ignore it.

    Quantity of Copies of Books v. Kansas is an obscenity case. As in Marcus, a mere affidavit is insufficient to base a warrant on. Such is not the case when it's copyright. No court has ever held that the extra procedural safeguards needed when it's obscenity apply when it's copyright. Every court to address the argument has rejected it. You completely ignore this.

    Alexander v. United States is an obscenity case. While it was a RICO case, the predicate acts were obscenity violations. The forfeitures there wasn't a prior restraint, it was subsequent punishment, since there had already been a trial on the issue of liability.

    It's strange that you cite Alexander, since its language backs my arguments:
    Petitioner first contends that the forfeiture in this case, which effectively shut down his adult entertainment business, constituted an unconstitutional prior restraint on speech, rather than a permissible criminal punishment. According to petitioner, forfeiture of expressive materials and the assets of businesses engaged in expressive activity, when predicated solely upon previous obscenity violations, operates as a prior restraint because it prohibits future presumptively **2771 protected expression in retaliation for prior unprotected speech. Practically speaking, petitioner argues, the effect of the RICO forfeiture order here was no different from the injunction prohibiting the publication of expressive material found to be a prior restraint in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). As petitioner puts it, see Brief for Petitioner 25, the forfeiture order imposed a complete ban on his future expression because of previous unprotected speech. We disagree. By lumping the forfeiture imposed in this case after a full criminal trial with an injunction enjoining future speech, petitioner stretches the term “prior *550 restraint” well beyond the limits established by our cases. To accept petitioner's argument would virtually obliterate the distinction, solidly grounded in our cases, between prior restraints and subsequent punishments.

    The term prior restraint is used “to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.” M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984) (emphasis added). Temporary restraining orders and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints. See id., § 4.03, at 4–16. This understanding of what constitutes a prior restraint is borne out by our cases, even those on which petitioner relies. In Near v. Minnesota ex rel. Olson, supra, we invalidated a court order that perpetually enjoined the named party, who had published a newspaper containing articles found to violate a state nuisance statute, from producing any future “malicious, scandalous or defamatory” publication. Id., at 706, 51 S.Ct., at 627. Near, therefore, involved a true restraint on future speech—a permanent injunction. So, too, did Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), and Vance v. Universal Amusement Co., 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980) (per curiam), two other cases cited by petitioner. In Keefe, we vacated an order “enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois.” 402 U.S., at 415, 91 S.Ct., at 1576 (emphasis added). And in Vance, we struck down a Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction of indefinite duration prohibiting the future exhibition of films that have not yet been found to be obscene. 445 U.S., at 311, 100 S.Ct., at 1158–1159. See also New York Times Co. v. United States, 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971) (per curiam) (Government sought to enjoin publication of the Pentagon Papers).

    By contrast, the RICO forfeiture order in this case does not forbid petitioner from engaging in any expressive activities *551 in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations. Assuming, of course, that he has sufficient untainted assets to open new stores, restock his inventory, and hire staff, petitioner can go back into the adult entertainment business tomorrow, and sell as many sexually explicit magazines and videotapes as he likes, without any risk of being held in contempt for violating a court order. Unlike the injunctions in Near, Keefe, and Vance, the forfeiture order in this case imposes no legal impediment to—no prior restraint on—petitioner's ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials; he just cannot finance these enterprises with assets derived from his prior racketeering offenses.

    The constitutional infirmity in nearly all of our prior restraint cases involving obscene material, including those on which petitioner and the dissent rely, see post, at 2782, 2785–2786, was that the Government had seized or otherwise restrained materials suspected of **2772 being obscene without a prior judicial determination that they were in fact so. See, e.g., Marcus v. Search Warrant of Kansas City, Mo., Property, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963); Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); Vance, supra. In this case, however, the assets in question were ordered forfeited not because they were believed to be obscene, but because they were directly related to petitioner's past racketeering violations. The RICO forfeiture statute calls for the forfeiture of assets because of the financial role they play in the operation of the racketeering enterprise. The statute is oblivious to the expressive or nonexpressive nature of the assets forfeited; books, sports cars, narcotics, and cash are all forfeitable alike under RICO. *552 Indeed, a contrary scheme would be disastrous from a policy standpoint, enabling racketeers to evade forfeiture by investing the proceeds of their crimes in businesses engaging in expressive activity.

    Nor were the assets in question ordered forfeited without according petitioner the requisite procedural safeguards, another recurring theme in our prior restraint cases. Contrasting this case with Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34 (1989), aptly illustrates this point. In Fort Wayne Books, we rejected on constitutional grounds the pretrial seizure of certain expressive material that was based upon a finding of “no more than probable cause to believe that a RICO violation had occurred.” Id., at 66, 109 S.Ct., at 929 (emphasis in original). In so holding, we emphasized that there had been no prior judicial “determination that the seized items were ‘obscene’ or that a RICO violation ha[d] occurred.” Ibid. (emphasis in original). “[M]ere probable cause to believe a legal violation ha[d] transpired,” we said, “is not adequate to remove books or films from circulation.” Ibid. Here, by contrast, the seizure was not premature, because the Government established beyond a reasonable doubt the basis for the forfeiture. Petitioner had a full criminal trial on the merits of the obscenity and RICO charges during which the Government proved that four magazines and three videotapes were obscene and that the other forfeited assets were directly linked to petitioner's commission of racketeering offenses.

    Petitioner's claim that the RICO forfeiture statute operated as an unconstitutional prior restraint in this case is also inconsistent with our decision in Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). In that case, we sustained a court order, issued under a general nuisance statute, that closed down an adult bookstore that was being used as a place of prostitution and lewdness. In rejecting out-of-hand a claim that the closure order amounted to an improper prior restraint on speech, we stated: *553 “The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited—indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.” Id., at 705–706, n. 2, 106 S.Ct., at 3177, n. 2.

    This reasoning applies with equal force to this case, and thus confirms that the RICO forfeiture order was not a prior restraint on speech, but a punishment for past criminal conduct. Petitioner attempts to distinguish Arcara on the ground that obscenity, unlike prostitution or lewdness, has “ ‘a significant expressive element.’ ” Brief for Petitioner 16 (quoting **2773 Arcara, supra, 478 U.S., at 706, 106 S.Ct., at 3177). But that distinction has no bearing on the question whether the forfeiture order in this case was an impermissible prior restraint.

    Finally, petitioner's proposed definition of the term “prior restraint” would undermine the time-honored distinction between barring speech in the future and penalizing past speech. The doctrine of prior restraint originated in the common law of England, where prior restraints of the press were not permitted, but punishment after publication was. This very limited application of the principle of freedom of speech was held inconsistent with our First Amendment as long ago as Grosjean v. American Press Co., 297 U.S. 233, 246, 56 S.Ct. 444, 447, 80 L.Ed. 660 (1936). While we may have given a broader definition to the term “prior restraint” than was given to it in English common law,2 our decisions have steadfastly preserved the *554 distinction between prior restraints and subsequent punishments. Though petitioner tries to dismiss this distinction as “neither meaningful nor useful,” Brief for Petitioner 29, we think it is critical to our First Amendment jurisprudence. Because we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558–559, 95 S.Ct. 1239, 1246–1247, 43 L.Ed.2d 448 (1975), it is important for us to delineate with some precision the defining characteristics of a prior restraint. To hold that the forfeiture order in this case constituted a prior restraint would have the exact opposite effect: It would blur the line separating prior restraints from subsequent punishments to such a degree that it would be impossible to determine with any certainty whether a particular measure is a prior restraint or not.

    In sum, we think that fidelity to our cases requires us to analyze the forfeiture here not as a prior restraint, but under normal First Amendment standards. So analyzing it, we find that petitioner's claim falls well short of the mark. He does not challenge either his 6–year jail sentence or his $100,000 fine as violative of the First Amendment. The first inquiry that comes to mind, then, is why, if incarceration for six years and a fine of $100,000 are permissible forms of punishment under the RICO statute, the challenged forfeiture of certain assets directly related to petitioner's racketeering activity is not. Our cases support the instinct from which *555 this question arises; they establish quite clearly that the First Amendment does not prohibit either stringent criminal sanctions for obscenity offenses or forfeiture of expressive materials as punishment for criminal conduct.
    Alexander v. United States, 509 U.S. 544, 550-55, 113 S. Ct. 2766, 2771-73, 125 L. Ed. 2d 441 (1993) (bolding mine).

    Your point that seizures of materials can be a prior restraint is well-received, and I thank you for making it, yet you haven't explained away the fact that when it's copyright there is no need for a prior adversarial hearing. As I've said (and shown), a mere affidavit is sufficient when it's copyright. The reason is because copyright infringement is an objective determination, not a subjective one. As the court in Boggs put it, the determination requires observation, not evaluation.

    No matter what label you stick on the government's actions in the instant case, the government utterly suppressed all expression through the Rojadirecta .com and .org domain names for a year and a half. And the government suppressed the entirety of that expression without a final determination that the expression was unprotected.

    If the speech was suppressed, why was it available only days later using a different URL? It's not like seizing quantities of materials since those materials are taken out of circulation. What was seized was a domain name, not a quantity of allegedly obscene materials. You're trying to force this seizure into the Court's rubric for seizures of quantities of allegedly obscene materials. The Court's reasoning doesn't apply when it's copyright.

    Now, if materials that are allegedly infringing are seized, they can be taken out of circulation without a prior adversarial hearing. When it's copyright, an affidavit alone is sufficient to establish probable cause. This is true whether it's allegedly infringing materials or instrumentalities of infringement. It's only when they're allegedly obscene do you get the extra procedural safeguards. You haven't addressed this distinction, which is critical, and I suspect it's because you cannot.

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