from the took-'em-long-enough dept
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...