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 @ 9:20am

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

    This alone as the premise of your argument makes no sense. You are basically stating fair use doesn't exist (even as you attempt to acknowledge it later). That with a claim of copyright infringement, there is never the possibility of a fair use ruling and so it turns out to be protected speech. That is after all the entire basis of fair use - that there are certain kinds of infringement that are actually protected speech, exempted from the copyright holders normal control over how a work may be used. This ability for certain kinds of infringement to be considered fair use is somehow not akin to finding certain obscene materials to be protected speech?

    I'm sorry if I'm unclear. Fair use is always a possibility. When it's wholesale copyright infringement though, like a website that's offering up entire copyrighted movies, then fair use isn't in play. The investigating officer or agent can determine that fair use is not in issue. Probable cause can be established by an affidavit without a prior adversarial hearing. If there were a colorable fair use argument, I think that extra procedural safeguards would be necessary, under the Court's prior restraint jurisprudence. I'm aware of no cases of infringement where the government has seized a domain name and fair use was even on the table. While fair use is possible, it's not practical. And don't forget that not all fair use is protected by the First Amendment. The time-shifting in the "Betamax" case comes to mind. The Court never once brought up the First Amendment in determining that time-shifting is fair use. Some fair uses are protected by the First Amendment, and some are not.

    Also regarding Arcara, see the previous lengthy debates. Arcara only worked because the case was not about copyright at all, or even about the content of what was being sold at the store and as the court argued, meant they didn't have to consider first amendment protections, issues like fair use, etc. Arcara only works if the case isn't about copyright or content at all. And again, as regularly pointed out in those debates, Arcara still recognised situations where similar means could be found to be prior restraint if the target of the remedy placed undue burden on protected speech.

    Yet we have not traditionally subjected every criminal and civil sanction imposed through legal process to "least restrictive means" scrutiny simply because each particular remedy will have some effect on the First Amendment activities of those subject to sanction. Rather, we have subjected such restrictions to scrutiny only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in O'Brien, 3 or where a statute based on a [478 U.S. 697, 707] nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star. This case involves neither situation, and we conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books.

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=478&i nvol=697


    The section you quoted involves the issue of whether a substantive copyright statute gets heightened First Amendment scrutiny. The Court there refused to apply heightened scrutiny to the statute at issue. The Court has never applied heightened scrutiny to a copyright statute because copyright is about protecting property rights, not about restricting viewpoints or speech about certain subject matters.

    I really don't get how you can keep claiming that Arcara states it's OK to seize anything relating to copyrighted works, or that copyright is somehow immune to First Amendment consideration.

    We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment."

    Eldred v Ashcroft

    http://www.law.cornell.edu/supct/html/01-618.ZO.html


    The Court in Eldred said that copyright statutes don't get a free pass. As long as the traditional contours of the idea/expression dichotomy and fair use are left intact, the statute need only pass rational basis scrutiny. The CTEA, the statute at issue there, left the traditional contours intact and passed rational basis scrutiny. The forfeiture statute at issue with these seizures is not a substantive copyright statute, so the test from Eldred doesn't apply. I think the forfeiture statute would get heightened scrutiny as a content-neutral regulation of speech. But we've moved way past the issue of prior restraint, which is a whole different animal.

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