Websites that oppose the taking of government domains consistently succeed.
The Spanish sports-TV “linking site” Rojadirecta had two domain names, one.com and one.org, taken by the US government in 2011. The agency said the website was blatantly encouraging copyright infringement. The Spanish parent firm of Rojadirecta then retaliated against the government’s request to relinquish the domains. The government gave in today, dismissing the case against Rojadirecta and ordering the restitution of the domains, 1.5 years after the confiscation.
With the use of federal seizure orders, Immigration and Customs Enforcement (ICE) has been carrying out “Operation In Our Sites” for the past two years against US-registered websites that are allegedly linked to piracy or counterfeiting. Early in 2011, right before Super Bowl Sunday, ICE acquired a fresh group of sports-related domains, the majority of which were websites that allowed users to watch live sports online. One of the major players (pardon the pun) in this field, Rojadirecta, was an obvious target, thus ICE moved to replace the domain names with its own seizure banner. Without delay, Rojadirecta moved to rojadirecta.me and carried on with business as usual.
In its testimony against the website, the government stated that the connections to well-known and forthcoming sporting events on the front page were “purposefully aggregated and organized by the owner(s) and/or operators”; they did not try to shift the blame by claiming that “the users did it.” Furthermore, “more than half 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” —trying to refute the “only a few links were infringing” claim.
In addition, Rojadirecta included its own advertisements in the information it linked to, and according to the government, the CEO of the website earned “more than $25,000” from Google AdSense between January 2006 and early 2011—not a huge sum, but proof that money was being generated from the activity none the less.
The website’s owner, Puerto 80, a Spanish business, however, retaliated by employing American attorneys to defend it in federal court. Among its defenses was the assertion that the seizure had been unlawful since, according to attorneys, the law only addressed direct infringement and not linking. Even if Rojadirecta might have “induced” US citizens to violate copyrights, that was a civil law issue rather than a criminal one.
Additionally, the site’s lawyers contended that in these situations, the seizure legislation itself was considerably too harsh. The website was Rojadirecta’s sole business, as opposed to a drug case where the police could seize someone’s automobile to stop it from being used to transport drugs. Furthermore, in contrast to a drug case, the copyright claims in this instance were not nearly as obvious as when police discover someone in possession of a brick of heroin in the back seat, which is prohibited. Due to the disagreements, lawyers contended, Rojadirecta ought to be given the opportunity to defend itself before having its whole business taken over.
While observing that Rojadirecta had simply changed domain names and carried on with business, the judge disagreed that the punishment was excessively severe.
While the case was dragging on, the government dropped a related case against Dajaz1, a significant target of a previous seizure that had chosen to retaliate. In that case, the feds continued to delay the case while they awaited word from the RIAA, only to come to the conclusion that the necessary evidence would not come to light.
After fighting for more than a year, the government ended the Rojadirecta case today with a brief court filing that voluntarily terminated the case but provided little explanation for its decision.I was given a copy of the cover letter the Southern District of New York US Attorney’s office sent to the judge along with the case dismissal; it stated only that the case was being dismissed “in light of the particular circumstances of this litigation” and “as a result of certain recent judicial authority involving issues germane to the above-captioned action.” The office of the US Attorney declined to comment further.
Following the filing, the judge issued an order today nullifying the seizure warrants and directing the return of the Rojadirecta domains to Puerto 80 “forthwith” by Verisign, the company in charge of the.com register, and The Public Interest register, the organization in charge of the.org names.
When contacted for comment, Rojadirecta’s attorneys did not immediately reply.
However, Public Knowledge, an advocacy group, swiftly stepped in. Sherwin Siy, vice president of Legal Affairs, stated that “this case shows that the procedures for seizing domain names are flawed, like the unwarranted Dajaz1.com seizures.” “The government can easily confiscate domain names and retain them for a long time, even in situations where it cannot establish a plausible case of infringement. Our methodology basically treats website owners as guilty unless proven innocent due to the ongoing growth of copyright enforcement regulations.”
According to ICE Director John Morton’s remarks from the previous year, the strategy worked as the majority of the targeted locations accepted the seizures and forfeitures. At the time, he stated, “The collateral impact of this enforcement action was frankly unanticipated.” “81 additional websites that had been selling stolen content voluntarily closed, per an industry analysis. I worked in law enforcement for many years, and I have never witnessed that kind of deterrence. They even told us that obtaining court orders to seize these domain names would be like playing Whac-a-Mole, with new ones appearing faster than we could. That didn’t happen.
However, others who are against the ICE seizure campaign as a whole simply perceive Dajaz1 and Rojadirecta as extreme cases. One of the first people to notice today’s submission was law professor Eric Goldman, who tweeted the news along with the question, “But will they be held accountable for the improper seizure?”