From the Spring 2011 issue of The News Media & The Law, page 30.
A screen that reads “This domain name has been seized by ICE” greets visitors to the website Dajaz1.com. The influential hip-hop and rap music blog is one of many websites that has been shut down by U.S. Immigration and Customs Enforcement’s ramped-up efforts against online copyright infringement.
The government’s seizure warrant alleged that the Dajaz1.com website contained copyright infringing material in the form of downloadable songs. The blog’s operator, who uses the online name “Splash,” has disputed that claim. The Reporters Committee for Freedom of the Press could not reach Splash for comment, but he told The New York Times in December that he was innocent of copyright infringement because he received the songs from the record labels and artists as promotional material.
ICE didn’t just remove the allegedly infringing material from Dajaz1.com; it took down the entire blog, including reviews and commentary. Thus, in its efforts to protect the rights of copyright holders, ICE may be infringing on others’ freedom of speech.
Operation In Our Sites
“Intellectual property rights violators unfairly devalue America’s contributions, hinder our ability to grow our economy, compromise American jobs, and put consumers, families and communities at risk,” ICE Director John Morton told a congressional committee in April.
“From counterfeit pharmaceuticals and electronics, to pirated movies, music and software, IP thieves undermine the U.S. economy and jeopardize public safety,” Morton said in a statement submitted to the U.S. House of Representatives Committee of the Judiciary’s Subcommittee on Intellectual Property, Competition and the Internet.
The agency launched an initiative last year called “Operation In Our Sites” to combat online copyright infringement. The operation is intended to target “websites being used to sell counterfeit foods and distribute pirated merchandise and copyrighted digital materials,” Morton said. ICE obtains warrants to seize websites that sell, distribute and contain copyright-infringing material, from designer handbags to pop songs. Thus far, more than 100 websites have been taken down via government seizure of their domain names, he said.
Morton maintained that the ICE seizures are lawful. “Operation In Our Sites was developed with the Department of Justice to respect free speech, to provide due process, and to work within the statutory framework provided to us by Congress. Federal magistrate judges approve criminal seizure warrants based on probable cause for the domain names that are targeted.
“As with all judicially authorized seizure warrants, the owners of the seized property have the opportunity to challenge the judge’s determination through a petition,” he noted. “If a petition is filed, a hearing is held in a federal court to determine the validity of the affidavit supporting the seizure, at which point the government would have the burden of proof.”
Morton said that “under existing federal law, the website owner may also choose to demand return of the property through the law enforcement agency itself, by writing a letter to ICE.”
Questioning the government’s takedown practice
Corynne McSherry, the intellectual property director for the Electronic Frontier Foundation, understands the government’s goal in protecting copyright holders. However, in her opinion, the tactic used by the agency is flawed.
“What we have been seeing over the past several months is that there has been a concerted effort on the part of the federal government to sort of step up intellectual property enforcement efforts,” she said, but “we have an overbreadth problem.”
McSherry’s concern is that, in seizing an entire website because of some purportedly infringing content, the government is taking other expressive content offline as well.
“In the name of enforcing against copyright and trademark infringement, we’re clearly taking down noninfringing content,” she said. “That’s First Amendment protected speech, and that’s being taken down.”
Even the domain name can be a part of that noninfringing speech and, therefore, its seizure alone can be considered a violation of the First Amendment. “I think that domain names can be speech, to the extent the domain names carry a communicative message,” McSherry said.
When the seizure of the domain name includes noninfringing content, or protected speech, the seizure functions as a prior restraint. If a seizure can be considered a prior restraint, then there should be a process in place for the website’s owner to keep the noninfringing content online, she said.
“There has to be some sort of rapid response system because our default in this country is that noninfringing speech stays up, noninfringing speech stays available,” she said. “But that doesn’t exist because we’re talking about laws that were really created for a very different kind of circumstance.”
McSherry noted that federal law allows the government to seize property if it is being used for willful copyright infringement. But seizing a physical repository of infringing material — a warehouse containing illegal CDs, for example — is not the same as seizing a website containing infringing material.
“When we’re talking about websites that include noninfringing speech, again we’re talking about speech. It’s a very different type of activity that raises a whole different set of concerns,” she said.
The government also risks irritating foreign governments by reaching beyond its borders to combat infringement. One example she gave is the seizure of a domain name based in Spain. The U.S. government is “taking down sites where, in some instances . . . the site’s actually been deemed by another government to be perfectly legal,” McSherry said.
McSherry is not alone in her concerns. Some experts also question whether the Fifth Amendment right to due process is violated by these seizures.
Damien A. Riehl, an intellectual property and trademark attorney in Minneapolis, said the government takedowns are premised on the legal concept of in rem forfeiture, which is the seizure process used for narcotics and other criminal cases.
“So, just like [the government] could seize a car that was used for bootlegging whiskey or transporting drugs, they’re using the same thing saying that website operators are violating laws, criminal laws, and because of that they can go ahead and take what they consider to be property, which is the domain names,” he said.
Riehl said the government’s actions raise a concern under the Fifth Amendment, which prevents the government from depriving a person of property without due process of the law.
“Part of that generally means that, before they take away property, the government needs to give notice and a meaningful hearing. There’s only a few exceptions to that,” Riehl said.
He used the example of a yacht versus a house, both connected to a narcotics case. Riehl said that courts need to consider if the domain name is like a yacht used in the trafficking of drugs that can easily be moved to anywhere in the world, or is it like a home, where the property is important to the owner and it cannot easily be moved or hidden away.
The effectiveness of this process has also been questioned. “The concern [is that] if you shut down this one site another is going to pop up in its place. It’s like a game of whack-a-mole,” Riehl said. “So the question is: Can we whack that mole, is it possible to do that, or should we keep that mole where we can see it so we can regulate it.”
Another question that remains unanswered is: How to categorize the domain names? Riehl said a domain name can fall under four different categories. Other than being simply property, a domain name is an address. “It’s a way that people can access the website. So in a similar way, when they take away the domain name . . . it’s akin to taking away the ability for a customer to go to 123 Main Street.” A domain name is also a brand, like Nike.com, and can therefore be used in a trademark sense, Riehl said.
Riehl agreed with McSherry that domain names can also be considered speech, or expressive content. “Ostensibly the website domain name could be offering a point of view that others may consider to be unwelcome or unreasonable,” Riehl said. “It’s property but it’s beyond property and it could potentially touch on other areas of the law that the government isn’t necessarily looking at too closely.”
The Consumer Electronics Association has testified before Congress regarding changes to the ICE program. Michael Petricone, senior vice president of government affairs, said he believes that the system is flawed and could potential harm the Internet community.
“The domain name seizures, they’re a very blunt instrument. That’s why it’s critically important that any approach to rogue websites is narrowly targeted,” Petricone said.
The issue of speech, and if the right to free speech is being quashed by these seizures, is huge, Petricone said. “Granting the ability of the government to unilaterally remove speech from the Internet is obviously a very serious thing.”
Last year, a bill was introduced in the Senate that would have granted the attorney general control of website takedowns in order to “combat online infringement.” The Combating Online Infringement and Counterfeits Act passed unanimously in committee, but never made it to the Senate floor for a vote.
The original Combating Online Infringement and Counterfeits Act, introduced in November 2010, defined Web violators as Internet sites “dedicated to infringing activities” if they offer goods or services in violation of federal copyright laws, or sell or offer to sell or distribute or otherwise promote goods, services or materials bearing a counterfeit mark.
The bill would have granted the attorney general authority to initiate an in rem action “against any domain name or names used by an Internet site” that is “dedicated to infringing activities.”
The bill also would have required the attorney general to simultaneously attempt to notify the registrant of the domain name of the alleged violation and of the government’s intent to take legal action. One option under the in rem action would have been for the attorney general to seek injunctive relief through a court order restraining further use of the domain name.
U.S. Sen. Ron Wyden, D-Ore., has been a vocal opponent of the seizure processes and their effects on the Internet and its users.
“I objected to last year’s Combating Online Infringement of Copyrights Act not because it might reduce the Internet’s ability to facilitate infringement, but because I believe it went about it in a way that would also reduce the Internet’s ability to promote democracy, commerce and free speech,” the senator said in a statement before the U.S. Senate Committee on the Judiciary during a hearing in February.
“The Internet has advanced the cause of free speech in ways that I believe would make the nation’s Founding Fathers proud,” Wyden argued. “Yes, the Internet needs reasonable laws and bad actors need to be pursued, but the freedoms of billions of individual Internet users cannot be sacrificed in the interest of easing that pursuit.” He added: “Granting law enforcement broad authority to censor online content has a chilling effect on free speech.”
Senate supporters in May introduced an updated bill, called the Protect IP Act of 2011. A press release by U.S. Sen. Patrick Leahy, D-Vt., hailed the updated bill as “narrow[ing] the definition of a rogue website, while ensuring that law enforcement can get at the ‘worst-of-the-worst’ websites dedicated to selling infringing goods.”
The rewritten bill also modifies aspects of the legal process for suits to brought by the attorney general, while also allowing private suits in some circumstances.
It appears unlikely that critics of the original bill will embrace the revised version. Shortly after the language of the new bill was released, the EFF’s “deeplinks” blog stated that: “Despite some salient differences . . . in the new version, we are no less dismayed by this most recent incarnation than we were with last year’s draft.”