If you don't recall, among the various domains that ICE and the DOJ seized last year were two domains -- rojadirecta.com and rojadirecta.org -- held by a Spanish company, Puerto 80. After extended negotiations to try to get the government to return the domain names, Puerto 80 finally sued
the government to get them back. Almost immediately after, the government filed to forfeit the domains (seizing property is supposed to be a temporary thing -- if the owner wants it back, the government has to file for forfeiture to keep it permanently). Thus there are two semi-parallel issues going on here. Either way, the judge rejected
the request to return the domains prior to the trial, and while the appeal
on that process is ongoing, back in the district court, the fight over forfeiture has continued.
Last December (actually the same day that the government was handing back the Dajaz1 domain in a similar dispute), the lower court dismissed
the forfeiture claim -- saying that the government failed to plead willful copyright infringement, which is necessary to show criminal copyright infringement. However, it allowed the government to refile, which it did. The two sides have filed their latest motions in the case, and once again, it appears that they're talking about two totally different things. In fact, reading through the government's filing
, it appears that they either have no understanding of the law itself, or have twisted themselves into such a tight knot, that they're not sure how to get out of it.
The details are a bit tedious, but let's see if we can break it out. First off, the seizure and forfeiture are "in rem" -- meaning that the case is against the domains themselves, and not the owners of the domains. That can be an awkward distinction, obviously, but the government makes it much, much more awkward in that it seems to shift its argument back and forth constantly. For example, it repeatedly (in a rather mocking tone) rejects the arguments of Puerto 80 by noting that no one is accusing Puerto 80 of anything. The case is merely about how the Rojadirecta domains "facilitate" criminal copyright infringement. So the government argues that the court should ignore the (rather compelling) defenses for why Puerto 80 did not violate criminal copyright law.
Now, that part is fine... but where it gets weird is that the government immediately
then tries to use Puerto 80s actions as proof of facilitating infringement. If you're playing along with the home game, the government is arguing both that Puerto 80s actions are meaningless to the case
and that Puerto 80's actions are the key to facilitating criminal copyright infringement
. Basically, whenever Puerto 80 points out that its actions do not meet the standard of criminal copyright infringement, the government waves its hands and says "doesn't matter, we're not charging you, just the URL." But then to prove that the URL "facilitated" the actions, it cites Puerto 80's actions, rather than the URL's actions. That's because the URL doesn't act
. It's just a URL. See the following as an example:
Additionally, there can be no serious argument that the Government has alleged that the
Rojadirecta Domain Names' facilitation of the underlying copyright offense was anything but substantial.
See Amended Complaint... ("At all relevant times, the links displayed on the main homepage of the
Rojadirecta Website were purposefully aggregated and organized by the owner(s) and/or operator(s) of
the Rojadirecta Website. Moreover, more than half of the material available on the Rojadirecta Website
at any given time during law enforcement's investigation appeared to be dedicated to making infringing
content available to users of the Rojadirecta Website.")....
Puerto 80's arguments about its own conduct are irrelevant and misapprehend the nature of the
See that? First it's "here's all the evidence of things done by Puerto 80"... and then immediately, "Puerto 80's actions are irrelevant".
At times this reaches absolutely absurd levels, such as the part of the government's filing in which they assert that the domain itself had knowledge of infringement
. The feds can't say Puerto 80 had knowledge, since (again) they admit that Puerto 80 is not being charged. So they switch and anthropomorphize the domain itself:
Indeed, the Rojadirecta Domain Names were repeatedly noticed
that they were linking to copyright infringing content.
You see? It's not Puerto 80 who was noticed, but the domain name itself. It must have "known." Or something.
The government's argument gets even worse from there, because nowhere does it show where the criminal copyright infringement happened. In order for the government to claim that the Rojadirecta domains facilitated criminal copyright infringement, you would think the first step would have to be to show where it actually happened. Here, the government basically waves its hand and says, "of course it happened." First, it highlights the fact that because of links on the Rojadirecta sites, content could be streamed from third party sites
. In fact, it straight out admits that Rojadirecta hosted no infringing content, but rather it was all on these other sites. It then notes that such streams likely violated the performance and reproductions rights under the Copyright Act. That may be true, but that, alone, does not make it a criminal
offense. That requires willfulness -- which was the problem in the original filing.
But, here again, the feds run into a serious problem: how can they show willfulness on the part of the infringer when they never identify an infringer
? The entire filing insists that the domains should be forfeited because they were used to facilitate a crime, but they never show that any crime was actually committed, because they never even attempt to identify who committed the crime. They admit that it's not Puerto 80 (even as they try to use Puerto 80's actions). It likely isn't the users of Rojadirecta (and the government doesn't even try to make that claim). Instead, it seems to hint at an imaginary party who willfully infringed, but is never actually identified! It's really amazing.
The implications here are staggering
. Basically, the feds are arguing that they can seize and then forfeit a domain without showing any crime actually happened. Instead, all they need to do is vaguely assert that someone, somewhere may have possibly violated a law somehow using the domain in the process -- but they never have to actually prove anyone violated the specific law. In other words, if the government wanted to, under this definition, it could easily seize and forfeit any search engine domain or any website that allows public comments, merely by asserting that a link in a search result or a link in a comment led to infringing material. That's an insane interpretation of the law -- yet it appears to be the one that the feds are asserting.
One hopes that the judge actually understands the absolutely insanity of the feds' argument here. Puerto 80's lawyers lay it out nicely
(pdf) in their response, but courts can be funny sometimes -- especially in copyright cases. Still, the argument made by Puerto 80's lawyers lay out just how ridiculous this interpretation would be:
Under the government’s construction of [the law], every domain name
that pointed to a website containing links to infringing copies would “facilitate” and have a
“substantial connection” to the offense of criminal copyright infringement, and would therefore
be subject to forfeiture. The broad construction of the term “facilitation” the government seeks
would give it the power to shut down google.com, yahoo.com, bing.com, or any of an array of
other channels of communication that—like every site on the Internet—link to content provided
by third parties that might or might not be infringing. The property in question is two domain
names, which (in the government’s words) are merely “labels” that “resolve” to websites, and are
distinct from the servers that host the website or any content of it....
The government’s theory would
have allowed it to seize the New York Times issue that published the Pentagon Papers and
destroy it, on the theory that the New York Times was facilitating Daniel Ellsberg’s violation of
national security laws. And the Times would have had no opportunity to show that its speech
was lawful. There is no reason to think Congress intended the forfeiture statute to extend so
broadly. And even if it had, Congress lacks the power to confer such plenary control over
speech on government agents acting without judicial sanction.
Of course, all of this doesn't even touch on two other important issues in the case. One is the First Amendment questions raised by seizing a domain and the second is the fact that US copyright law only matters in the US, not in Spain. In both cases, the government again comes back with wacky responses. On the First Amendment claim, it argues there's no First Amendment issue, relying incorrectly on the Arcara vs. Cloud Books case. But that ruling is clear that it only applies if the crime in question is not expressive. But copyright infringement is often absolutely expressive. It may not be protected
expression but it is expression, and as such it requires First Amendment scrutiny to make that determination. The government flat out claims that copyright infringement (which it falsely calls "intellectual property theft") is "unrelated to speech." That's simply incorrect. Courts have long established that there is a balance between copyright and the First Amendment, and you can only establish infringement following a ruling by a court. Yet here the government wants to skip over that step entirely. As Puerto80 notes:
The government argues that the links on the Rojadirecta website are not protected speech
because they constitute copyright infringement. But that argument exactly misses the point of
the prior restraint doctrine. Unless and until there has been a final determination on the merits
after an adversary hearing, there is no basis to find that criminal copyright infringement occurred
on the third party sites to which the Rojadirecta website linked.
As for US law being applied outside the US, here the government just tries to wave this issue off again. It first admits that US law does not apply outside its borders, but then insists that it is "inconceivable" that some
infringement didn't happen inside the US. But that's not how the law works. You have to actually show the infringement. You can't just insist that it happened somewhere in the US and move on...
The further this case goes, the worse and worse the government's arguments seem to get, and the less and less it seems to understand about the hole it has dug for itself.