Some of you may recall that a month ago or so, I posted a comment here about a bill making its way through the Senate, the Combating Online Infringements and Counterfeits Act (“COICA”), that would allow US courts to “seize” domain names belonging to US or foreign websites simply upon a charge, by the Attorney General, that the site was “primarily devoted” to infringing activities. I was the author of a law professors’ “Letter in Opposition” to the bill, which garnered around 50 co-signatories, based largely on the grounds that these seizures would represent “prior restraints on speech” under the First Amendment, and were blatantly unconstitutional.
Whether the Letter had any effect is not clear – but the bill, which passed through the Judiciary Committee without opposition, has been stalled by Senator Wyden of Oregon, who has put a “hold” on it.
That’s the good news. The bad news is that the US government apparently believes it has the power to do what COICA purported to authorize it to do even without new statutory authority. Over the past weekend, as many news outlets have reported, US Immigration and Customs Enforcement (“ICE”) — a division of the Department of Homeland Security — seized over 80 domain names being used by websites involved in online file-sharing (such as torrentfinder.com, a site pointing to other sites enabling use of the BitTorrent file-sharing protocol) and sale of allegedly counterfiet goods (e.g., louisvuittonoutlet.com, scarfsonline.com). [The ICE Press Release describes the actions in somewhat more detail; the list of seized domain names is here]
It’s not entirely clear, from the news reports, exactly how these “seizures” were effected. It appears that ICE obtained judicial warrants under the Civil Forfeiture provisions of 18 USC 2323(a), which makes the following property “subject to forfeiture to the United States”:
(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17 . . . [prohibiting "willful copyright infringement"];
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A); or
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).
The warrants were apparently served on Verisign, the “registry” for several top-level domains (including .com and .net), ordering Verisign to transfer the domain names in question to the US government.
It’s an outrage. To begin with, there’s the bizarre spectacle of the Department of Homeland Security – which, last I looked, had some important issues before it that actually relate to “homeland security” — expending time and resources to protect purely private interests (of. e.g., the Louis Vuitton handbag manufacturers and Warner Brothers’ Records). And the operation perfectly illustrates the objections we raised in the COICA Letter: 80 websites — many of them operating overseas — have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral, that anything unlawful is going on at these sites, only an affidavit to that effect submitted by the ICE.
I’m no expert in forfeiture law, to be sure — but the notion that the government can seize property before there’s been anything like a true hearing on the matter of unlawfulness of conduct strikes me as truly appalling. As I wrote in that COICA Letter:
At a time when dozens of foreign governments have dramatically stepped up their efforts to censor Internet communications in order to suppress legitimate dissent, to marginalize religious minorities, and to prevent citizens from obtaining information about the world outside their borders,2 the United States has always been a voice – often the only voice – opposing these efforts. Our ability to defend the principle of the single global Internet – the Internet where all of humanity has equal access to knowledge and ideas, the Internet that looks the same to, and allows free and unfettered communication between, users located in Shanghai and Seattle and Santiago, free of locally imposed censorship regimes – will be deeply compromised by [seizures of this kind], which would enshrine in U.S. law for the first time the contrary principle: that all countries have a right to insist on the removal of content, wherever located, from the global Internet in service of the exigencies of local law. Nothing limits the application of this principle to copyright or trademark infringement, and nothing limits the application of this principle to actions by the United States; when all countries exercise this prerogative in support of their local legal regimes, as they surely will, we will have lost – or, more properly speaking, we will have destroyed – the single global interconnected communications platform that we have built over the past several decades and that holds out so much promise for the improvement of human society across the globe.
Nathanael says:
It’s my understanding that law enforcement has been using this kind of forfeiture for a while, particularly when trying to harass drug peddlers and those suspected of organized crime. According to my admittedly limited research, all the cops/feds have to do is prove (possibly a strong word for many of these cases) to a judge that the property in question is being used in a crime. If they do that, they can seize the property, placing the onus on the property owner to prove at his own expense that they are wrong.
December 1, 2010, 9:47 amwhiskey says:
I think the key passage is:
“In many instances, the goods were shipped directly into the United States from suppliers in other countries using international express mail.” Remember the C in ICE is for “Customs.”
I take it that the government considers these domain names equivalent to, say, a boat used in smuggling.
December 1, 2010, 9:47 amNealix says:
Notice that this did not take down The Pirate Bay, the most serious torrent website for sure. Interesting.
December 1, 2010, 10:26 amA. Criminal says:
What the Hell Ever Happened to Due Process?
Due process turned out to be inconvenient and inefficient when applied to “domestic violence” and drug cases, so they stopped bothering with it. Is that news?
December 1, 2010, 10:32 amrumpelstiltskin says:
Jesus, David. Reconsider your line here:
So how do you propose that the government, say, collect evidence at the scene of a crime?
Or maybe you want an adversarial hearing before a court can issue an arrest warrant?
Seriously?
You do realize that courts issuing warrants, without input from the accused, is pretty traditional part of “due process of law”?
Get a grip.
December 1, 2010, 10:40 amEMB says:
At the scene of the crime, there’s some risk of evidence being lost, destroyed, etc., so of course the police should be able to seize actual evidence.
The issue here is that the seizure doesn’t consist of evidence at all (they are seizing the domain names, not the servers used to operate these sites, which indeed might contain a great deal of evidence).
December 1, 2010, 11:27 amLior says:
Well, as Radley Balko has been documenting for a while in the drug war context, “civil forfeiture” is entirely about denying due process.
“Civil forfeiture” actions are held against the property rather than against the owner, under the legal fiction that the property itself is criminal. This is how you get cases like “US v. $76,400″. Of course the property doesn’t get to be represented, and all the government has to do is make a plausible argument that the goods are somehow related to crime. Now since there was already a determination about the property, the burden of proof shifts to the owner. First, he must intervene (!!) in the suit (by design, he’s not a party), and then he must prove to a high standard, that he is innocent.
Thus I don’t understand Prof. Post’s alarm about this specific instance of this scheme. The whole idea of civil forfeiture is to take property without Due Process.
The real cause for alarm here is that the US is abusing its special position in Internet governance, by having Verisign manipulate the DNS registry.
December 1, 2010, 11:27 amMany of the domains were registered outside the US, by registrars other than Verisign. If this persists the rest of the world will move ICANN outside the US and ensure this can’t happen. In particular, Verisign altering DNS records for domains which are not registered through Verisign should be sufficient cause to revoke their position as the registry for the top-level domains that they have since they clearly cannot be trusted to keep their hands off the DNS records.
karrde says:
My understanding is that someone must be on trial, or convicted, for this to happen in a drug case.
(I am willing to stand corrected on this fact, though.)
December 1, 2010, 12:18 pmKatahdin says:
Today it’s counterfeit purses, but what about when some future attorney general finds, say, a document containing a trade secret on wikileaks. The same legal argument would seem to give the attorney general the power to block Americans from viewing wikileaks. I dunno if I want an administration tempted by that kind of power.
December 1, 2010, 12:26 pmPatHMV says:
This is entirely common in civil forfeiture proceedings, which can indeed be quite maddening, from a due process stand-point.
While I am concerned that ICE may have been heavy-handed here, I see several arguments to be made in their favor. As far as having “bigger things to worry about,” from what I understand, a lot of terrorists (and old fashioned mobsters) make a lot of money through selling illegal counterfeit goods. Cutting off the funding sources of terrorism is an entirely legitimate activity for our customs and law enforcement agents.
Moreover, these type of sites can make it very difficult to identify specific individuals against whom due process can be sought. If it’s a foreign operation that provides no individual names or contact information on the site itself, what other option does the government have to shut it down, other than through an in rem forfeiture proceeding?
December 1, 2010, 12:33 pmNickM says:
Welcome to asset forfeiture law. BTW, I doubt the forfeitures for the counterfeit goods were brought under the Copyright Act. I tend to think they were pursuant to the Lanham Act.
I agree with Pat’s point that terrorists and organized crime are funding their operations through this sort of activity. I’ve been working for a while on trying to get one of the internet’s largest purveyors of fake celebrity autographs shut down (Anyone want to buy a signed movie poster of James Dean from Giant, which was released after his death?), and, though they claim offices in NY and CA, those are just mail forwarding operations, and their IP traffic comes out of China.
There aren’t too many other tools to take down a scam like this. Even their advertising is hard to stop – Goodle AdWords sent a form letter to one of the celebrities who protested to them that GA was carrying ads for a company selling fakes of his signature telling him that he needed to contact the trademark holder to let the holder know his rights might be violated!
Nick
December 1, 2010, 1:12 pmChris Travers says:
Um…. The first thing to do is to look up the whois info, find out the registrar, and see if this info can be obtained from the registrar, I would think.
December 1, 2010, 1:27 pmAndy says:
1. Throwing out the terrorism card is just nonsense, this isn’t about that and no one that has any real knowledge of this space things counterfeiters are terrorists, despite one or two whitepapers making the claim, without any proof.
2. I don’t understand how this is different from a counterfeiter setting up shop on a street corner and selling counterfeit DVDs or handbags. Of the police arrest them, aren’t they entitled to seize the counterfeit merchandise as well? The court will eventually determine guilt/innocence, but we don’t arrest the person and leave their good on the street, right? How is this different? Maybe its more like seizing the storefront/store where the drugs are being sold. It isn’t like seizing the person’s car that they used to drive to the store to sell the drugs, we’re seizing the materials of the crime itself.
This leaves out entirely whether this is a good use of DHS resources, whether it is effective, I’m just interested in the legal aspects.
3. Assume the businesses are located outside the US, but are selling counterfeit goods to US consumers (which for some of these seems to actually be the case, ICE did order and receive counterfeit goods) then what is the appropriate recourse? ICE could hold a trial, the defendant located in China (or elsewhere) wouldn’t show, and then what? Would ICE then be allowed to take the domain? After what sort of hearing? What would constitute cause then?
Is the objection here one about due process, or that the USG should have any jurisdiction at all, and if not them, then who should be able to get these sites taken down (if at all) and how?
December 1, 2010, 1:45 pmrumpelstiltskin says:
Wait, “of course”? That’s not at all what David Post is suggesting. He’s suggesting that ANY seizure be preceded by a “fair hearing” on the facts.
December 1, 2010, 2:04 pmJay says:
There is no such requirement. If someone is actually indicted, the government will often put a forfeiture count in the indictment (this happens with respect to the weapon in most felon in possession cases, for example). But civil forfeiture is often based on simply on someone having been pulled over with $20,000 in the glove compartment and no good story about where it came from.
December 1, 2010, 2:07 pmJustin Levine says:
PatHMV –
December 1, 2010, 2:10 pmCDU says:
This part of your outrage, at least, is misplaced. The Department of Homeland Security is a grab bag of federal agencies, all of which have duties related to homeland security. However, many of them also have substantial non-homeland security duties. Are you outraged that the Coast Guard is spending it’s time and resources assisting stranded boaters? That the Secret Service is tracking down domestic counterfeiters?
December 1, 2010, 2:24 pmJardinero1 says:
Counterfeit goods serve a useful economic purpose of providing designer goods to lower income people at reasonable prices. Increased volume of such goods provides increased employment for those involved in the manufacture. The only real harm suffered is to the designers of the designer goods and their licensees. They are a very small group of individuals and so, for policy purposes, one has to weigh the needs of so many poorer people against the needs of a wealthy few.
By the way, NickM, no harm comes to James Dean from the sale of his bogus signature; he is dead after all. No harm comes to anyone who buys it. The purchaser of such a signature only suffers harm in the form of anguish and remorse when someone reveals it as bogus. So just don’t tell anyone it’s bogus, no harm done.
December 1, 2010, 2:35 pmSigivald says:
18 USC 2323 (B) there says anthing used to facilitate (A) is seizable.
A domain name is “property”, and certainly it’s part of the “selling illicit goods” in (A).
Given that (according to AG Holder’s press release) they
A) Actually purchased infringing goods on the websites in question and then
B) Got an honest-to-God warrant for the seizure
I’m not sure I see a “due process” problem.
My impression is that in cases like this not involving the internet, the prima facie counterfeit goods are seized upon a warrant exactly like this, and then there’s a court hearing after which the property is either destroyed or, if the original determination was in error, restored.
(And as CDU and others said, ICE, which is part of DHS, handles outside-the-US-but-being-imported IP issues. Which is exactly what any purchase of infringing goods from outside the US would be.)
Justin: These days a large percentage of “BitTorrent sites” are actually useless for finding free torrents, but very happy to sell you “direct download” access for the thing you were looking for.
Selling you “premium” access to stolen IP, and especially a for-pay direct download, is plainly a violation of the law.
Again, Holder’s press release says that the agents involved purchased content from the websites that were shut down, not that they downloaded it for free.
December 1, 2010, 2:37 pmBruce Hayden says:
It is not clear what all ICE seized in the way of domain names, and where they were all registered. This is going to be interesting, as we see it all unfold.
I would think that there are different problems depending on whether the domain name was registered by a U.S. registrar or not. If not, I think that there may be some treaty implications. We would be upset if some foreign country seized domains registered here, esp. using such a suspect mechanism. Yes, the U.S. did invent the Internet, DNS, etc. But, it gave away a lot of its power over such several years ago.
On the other hand, the seizure of domains registered here is clearly within the Commerce Clause power of our government, to the extent allowed by the 5th Amdt. Unfortunately, there does appear to be case law that would support the theory that providing a hearing after the fact is sufficient to comport with Due Process.
One reason that I find this whole thing a bit problematic is that ICE is, in essence, acting as an agent of certain groups, such as the RIAA. If they had gone into court for an ex parte writ of search and seizure, they would have had to post a bond and may not have been able to seize the domain names. But by using ICE as their agent, they get to do this without such inconveniences.
December 1, 2010, 2:39 pmgs says:
While I don’t go as far as Jardinero1, IMO today’s copyright laws were written by corrupt legislators on behalf of parasitic economic interests and at the expense of the general public.
I’ll listen to justifications for strengthened enforcement after copyright terms are reduced to five years.
December 1, 2010, 2:50 pmIP Outrages: Volok.com’s David Post Comes Out Swinging Against Domain Name Seizures By The U.S. Government Over File Sharing Concerns | Science Report | Biology News, Economics News, Computer Science News, Mathematics News, Physics News, Psychology says:
[...] http://volokh.com/2010/12/01/copyright-enforcement-tail-wags-internet-dog-contd-or-what-the-hell-eve... [...]
December 1, 2010, 3:03 pmLurker says:
Thank you, David Post, for this excellent blog entry. This is indeed troubling.
I don’t see this as equivalent to seizing evidence from the scene of a crime, or to a search warrant. This is more like the government nailing shut the door of a business and permanently shutting it down: without a proper hearing. Seizing control of the domain name doesn’t provide any evidence. But it does prevent the rest of the world from accessing the information and documents on those web sites. In this sense, maybe an even better analogy would be if the government went and shut down a newspaper company.
The potential for harm to freedom of expression seems significant. This gives the government great power to shut down websites they don’t like: even if it’s just because they don’t like the content hosted on the website. Not a good development.
I don’t see this as the same as civil forfeiture of $50,000 or a car or a house: but that’s bad too, and both deserve to be loudly denounced. The existence of one doesn’t make the other any better. Two wrongs don’t make either one right.
December 1, 2010, 3:13 pmLior says:
By the way, “domains” are not physical objects that can be seized. A “domain” is rather like a phonebook entry: it mainly serves to convert a name (volokh.com) to a numerical address (174.37.144.148). “Seizing the domains” here means manipulating the phonebook — not physically seizing the apartment where the telephone is installed.
If the US government really believes that its courts have the authority to order ICANN/Verisign to manipulate the DNS records, does it have the logically consequent belief that British courts, Chinese courts, Russian courts, etc have the same authority? Clearly AG Holder be enthusiastic about China manipulating the DNS system or internet routing tables to “seize” sites such as this one. Would Secretary Clinton share his enthusiasm?
December 1, 2010, 3:30 pmLior says:
By the way, “domains” are not physical objects that can be seized. A “domain” is rather like a phonebook entry: it mainly serves to convert a name (volokh.com) to a numerical address (174.37.144.148). “Seizing the domains” here means manipulating the phonebook — not physically seizing the apartment where the telephone is installed.
If the US government really believes that its courts have the authority to order ICANN/Verisign to manipulate the DNS records, does it have the logically consequent belief that British courts, Chinese courts, Russian courts, etc have the same authority? Clearly AG Holder be enthusiastic about China manipulating the DNS system or internet routing tables to “seize” sites such as this one. Would Secretary Clinton share his enthusiasm?
December 1, 2010, 3:31 pmLior says:
By the way, “domains” are not physical objects that can be seized. A “domain” is rather like a phonebook entry: it mainly serves to convert a name (volokh.com) to a numerical address (174.37.144.148). “Seizing the domains” here means manipulating the phonebook — not physically seizing the apartment where the telephone is installed.
If the US government really believes that its courts have the authority to order ICANN/Verisign to manipulate the DNS records, does it have the logically consequent belief that British courts, Chinese courts, Russian courts, etc have the same authority? Clearly AG Holder be enthusiastic about China manipulating the DNS system or internet routing tables to “seize” sites such as this one. Would Secretary Clinton share his enthusiasm?
December 1, 2010, 3:31 pmMLS says:
“…seized over 80 domain names being used by websites involved in online file-sharing…”
A very few were what some call file “sharing” sites. “Sharing” is in quotes deliberately. It is one thing to “share” a work free of copyright, but quite another when copyright pertains (in most such instances involving P2P the correct term would be “distribute”).
The vast majority of the sites appear to have been seized pursuant to 18 USC 981.
In case it has not as yet been noted, the US Customs Service is under the control of the Department of Homeland Security.
December 1, 2010, 4:19 pmChris Travers says:
I want to see China do the same to Google!
December 1, 2010, 5:19 pmDr. T says:
“… the notion that the government can seize property before there’s been anything like a true hearing on the matter of unlawfulness of conduct strikes me as truly appalling….”
Our federal, state, and local governments have been doing this for decades when someone is suspected of being a drug dealer, money launderer, or other criminal. Money, vehicles, and homes have been seized without trials, hearings, inquests, or charges. It is nearly impossible for the victims to recover their confiscated property.
Our Bureau of Customs and Border Protection also seizes property without cause. Its agents frequently confiscate anything that can hold electronic files: laptops, smart phones, PDAs, optical disks, flash drives, etc. The justification is that the confiscated materials will be inspected (supposedly for pornography involving minors) and returned, but few items are returned within six months and a large proportion are never returned.
The U.S. Supreme Court has repeatedly upheld these confiscations. Apparently, the Bill of Rights contains passages visible only to the Justices that indicate when the Fourth Amendment can be ignored.
December 1, 2010, 6:18 pmDr. T says:
“… the notion that the government can seize property before there’s been anything like a true hearing on the matter of unlawfulness of conduct strikes me as truly appalling….”
Our federal, state, and local governments have been doing this for decades when someone is suspected of being a drug dealer, money launderer, or other criminal. Money, vehicles, and homes have been seized without trials, hearings, inquests, or charges. It is nearly impossible for the victims to recover their confiscated property.
Our Bureau of Customs and Border Protection also seizes property without cause. Its agents frequently confiscate anything that can hold electronic files: laptops, smart phones, PDAs, optical disks, flash drives, etc. The justification is that the confiscated materials will be inspected (supposedly for pornography involving minors) and returned, but few items are returned within six months and a large proportion are never returned.
The U.S. Supreme Court has repeatedly upheld these confiscations. Apparently, the Bill of Rights contains passages visible only to the Justices that indicate when the Fourth Amendment can be ignored.
December 1, 2010, 6:20 pmChristopher Cooke says:
I do not see what there is to cause any outrage. ICE purchased counterfeit goods from these websites first, which evidenced that the sites were trafficking in illegal goods. ICE presented this evidence to a Magistrate Judge, who reviewed it and issued a warrant to seize the domains. The traffickers can contest the seizure if they want, by participating in court hearings in the USA but I for one doubt they will.
This seems to be pretty standard stuff for criminal copyright infringement, which is what these sites were facilitating.
December 1, 2010, 6:50 pmBruce Hayden says:
First, I think that counterfeit, when it comes to copyright infringement, is not exactly correct. Just like “theft” isn’t correct either. Counterfeit would imply, I think, that the goods were bogus. Passing off maybe. For the most part, the tunes, etc. being distributed were likely the real thing. This is part of why this is a bit disconcerting.
Similarly, typically when ICE seizes bogus or counterfeit goods, typically at the figurative border, they hold them for the owner of the mark or copyright, who often has them destroyed. That isn’t what was seized here. Instead, it was the domain names that were seized, and not any actual goods.
Finally, there is some indication that indirect infringers may have also been targeted – not just the BitTorrent sites, but also the sites used to find the BitTorrent sites. The problem there is that under at least civil infringement, the indirect or contributory infringers have a defense of substantial non-infringing use. The alternative would be that Xerox would be a contributory infringer whenever someone used one of their copiers to illegally make copies, regardless of how many legitimate copies are made on their copiers.
As I noted above, there is a lot of smoke right now all over the place. When it all settles down, we may have a better idea of what domain names were seized, where they were registered, and what was going on at those sites.
December 1, 2010, 7:30 pmFred says:
During the time that the NY Times had told the government it had and was planning to publish the Pentagon Papers, could the government seized and shut down the NYT?
Isn’t this the same? And the essence of prior restraint?
When I was handling both forfeiture and computer crimes for my district, agents wanted to seize a web site and shut it down. I refused. They elevated to the USA and then DoJ’s Computer Crime and IP Section. CCIPS top officials agreed with my refusal on prior restraint grounds. Eager as they were to shut it down, when offered the alternative of doing a targeted search but under rules that would not shut the site down, they decided not to.
I think it clear that the First Amendment trumps statutes and analogies based on in rem actions against ships caught smuggling and deodands against the sword used to kill someone (deodand because the king was supposed to use the proceeds for masses for the victims). E.g. Hale, Pleas of Crown, 419-23; 2 Britton, 16; 1 Blackstone, Commentaries *300). Forfeitures have become an enormous business for the government, and upheld in part because our nation was substantially funded at the time of the enactment of the constitution from these proceeds and the customs revenue forfeiture was the main enforcemtn tool. But the government has not been granted the powers of the Stationers’ Company to seize and destroy pirate and unlicensed printing presses. This was a part of the reasons for both the First and Fourth Amendment.
The NYT has a right to run a story talking about what an adult bookstore sells, and list its address. A web site has the right, I believe, to describe the content of another site, and provide its address (i.e. a link).
Bills like the the Combating Online Infringements and Counterfeits Act, and many of the changes to copyright law since that of 1790, show an unfortunate failure of democracy. When a bill will provide large benefits to a few by harming the great mass of the public but only a little each, usually only the few go to the trouble to influence Congress.
December 1, 2010, 7:35 pmBruce Hayden says:
Interestingly, the BitTorrent community is apparently already working on a scheme to prevent national governments from seizing BitTorrent and BitTorrent finder domains. The system would use a new top level domain, “P2P”, and put hooks into a local DNS that operates normally for all top level domains except for .p2p sites. Those would be serviced by a decentralized BitTorrent type system. I would think that all it would take for someone to use the system would be to bootstrap with one legitimate P2P DNS site, and that could be done utilizing static IP addresses if necessary, which are, I suspect, harder to corrupt than was done by ICE here with the symbolic domain names.
This should be quite interesting to watch.
December 1, 2010, 7:44 pmAndy says:
Let’s just focus on the sites that actually offered and shipped counterfeit goods. The bittorrent sites notwithstanding, what about the others?
Split this into two pieces, and while I don’t agree with the BitTorrent seizure, what about the others? Can we look at this separately for just a moment and see what we think of them?
December 1, 2010, 8:00 pmChristopher Cooke says:
Bruce
I was thinking of the phony Louis Vuitton bags when I loosely described counterfeit goods being purchased, which bags likely were sold bearing trademarks in violation of the Lanham Act. If you look up the ICE press release, many of the sites seemed to involve trademark violations (e.g., “lvuitton-outlet-stores.com”) not just copyright violations.
While people describe the First Amendment issues involved with these types of actions, to the extent this does involve attempts to enforce US copyright laws, this really shows the clash between different clauses of the US Constitution, i.e., Article I, section 8, which empowers the Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” and the First Amendment. Thus, to the extent this does involve copyright infringement, I am not sure that the First Amendment prior restraint argument is all that persuasive. There was a case in New York involving a hacker ‘zine (online magazine) who published DeCSS (the computer code used to circumvent encryption on DVDs) and was sued by the movie industry. The federal judge found that the publication of the code violated the DMCA and ordered the defendant to remove it from his website. I believe the MPAA obtained an ex parte temporary restraining order prohibiting the ‘zine (which was called 2600) and its owner from publishing the code and ultimately won such an order after a trial. The First Amendment arguments went nowhere.
I for one do not see why people who traffic in stolen or counterfeit goods and use the internet to do so should be entitled to more protections than people who do so in front of football stadiums, etc.
December 1, 2010, 8:00 pmGeoff Capp says:
Of course not. That would require taking account of foreign law, and we all know that’s anathema. :-P
December 1, 2010, 8:40 pmTechGeek says:
I’m not sure whether people here understand how domain names and DNS work, so let me propose an analogy:
Suppose that government officials bought goods from a telephone mail-order business by calling them up, received the goods, and determined that they are counterfeit or bogus or something. Suppose the officials went to a court and requested a warrant to order every phone company to redirect all phone calls to the business’s phone numbers, so that anyone who tries to call the business instead is redirected to Customs. Should the court grant it? Is this legal? Is it desirable? Does it matter whether the company is overseas and the phone numbers are international numbers associated with some other country?
The DNS is a little bit different than this analogy, because there are US registrars that have a privileged role in the DNS (Verisign is in the US, and they perform domain registrations for people throughout the world, including companies and domains abroad). But there are some definite similarities.
I want to point out a few things here: we’re not talking about a criminal prosecution, where a person has been convicted and found guilty of criminal copyright infringement. (This is a case where there has not even been a hearing that the business was a party to.) We’re not talking about seizing the goods themselves; we’re talking about interfering with customers’ ability to contact or communicate with the business. Actually, we’re not talking about seizing any physical property at all; we’re talking about ordering the phone company to change where phone calls are delivered to, or ordering domain registrars to change what computer they say is associated with a particular domain name.
December 1, 2010, 9:06 pmTechGeek says:
I presume you’re talking about Universal v. Reimerdes? I feel that decision was wrongly decided. And I think you didn’t summarize it accurately. The 2600 ‘zine published links to other sites that hosted DeCSS. The court’s ruling prohibited 2600 from publishing links to DeCSS, and this was upheld upon appeal.
I consider this a violation of freedom of speech. Publishing a link to a website with problematic content is exactly equivalent to telling people where they can find the problematic content. Free speech means that I’m allowed to tell you “there are lots of drug dealers hanging out at the corner of Main St. and 20th St. and selling pot”. In my view, to prohibit the equivalent on the Internet is a violation of freedom of speech, no matter what any court says.
But then, this was a case of first impression, with a highly unsympathetic defendant, involving complex technology that it’s not clear the judges really understood. I find it disappointing that the judges didn’t get it right, but I don’t consider the case persuasive. The law might well allow this kind of violation of free speech, but if it does, it’s an ass.
Bottom line: I don’t consider the Reimerdes case to have any morally persuasive power.
December 1, 2010, 9:53 pmDaniel J. Wojcik says:
The way I heard it is that the *FBI* purchased the counterfeit goods since this sort of thing falls under them, then asked for permission to seize the domain names from whoever it is they ask, and were denied permission.
So an end-run was made using the DHS because they aren’t answerable to anyone in particular.
If so, that’s a whole nother kettle of fish.
December 1, 2010, 10:33 pmBruce Hayden says:
I can’t get all that worked up over going after the counterfeit goods sites. I would suggest that there is no real non-infringing use of those sites, and we are also talking Lanham/trademark infringement probably even more than copyright infringement.
One problem that they seem to have bypassed by seizing domains in this respect I mentioned above, and that is inchoate infringement. It is arguable whether the BitTorrent sites are direct infringers in many cases. It is even more problematic when it comes to BitTorrent search sites.
Google is used on a regular basis by people committing copyright infringement. Should the U.S. government (or, indeed, any other government) be allowed to seize “google.com” as a result? I think that most here would probably think not. But, how do you distinguish between a BitTorrent search site, or even a BitTorrent site, and Google, etc.? Now, if the feds could show flagrant disregard of DMCA takedown notices, I think that they could make a decent case. Maybe. We shall see.
In any case, I don’t see the 1st Amdt. argument being all that strong for the actual BitTorrent sites. Maybe for the search sites, since there the purveyors of the service aren’t providing a mechanism for possibly committing copyright infringement, but rather, a mechanism for identifying sites that might be utilized for such a purpose. I think some of the other parts of the Bill of Rights may, or at least should, be more applicable to this situation.
You seem to be jumping back and forth a lot between fake Louie Vuitton bags and the infringing downloading of music. I think that the arguments for the two are very different.
December 1, 2010, 11:19 pmTechGeek says:
Since when is “providing a mechanism for possibly committing copyright infringement” the standard for when you can sieze a domain and shut down a business? That would lead to absurd results. Every email service provider “provides a mechanism for possibly committing copyright infringement”, since you could always send an email that infringes on someone’s email. Every web hosting company “provides a mechanism for possibly committing copyright infringement”, since you could possibly host copyrighted material on your web site. Heck, the US Postal Service service “provides a mechanism for possibly committing copyright infringement”, since you could always send copies of copyrighted material through the mail in violation of copyright law. Should we shut down the US Postal Service?
December 2, 2010, 12:27 amToby says:
Got it. If we don’t subvert the internet registration system to support non-proliferation of Hermes bags, then the Terrorists win! Folks protesting above must hate America….
I think this is known as begging the question.
December 2, 2010, 12:31 amChristopher Cooke says:
TechGeek: you are correct, I was talking about the Reimerdes case. I was going from memory. I followed the case when the trial was going on, by reading the posts that Mr. Corley (publisher of 2600) prepared each day during the trial. Regardless of whether you think the 2nd Circuit has “moral” value, it is the second highest court in the United States and the governing law in New York on such issues.
My comment about your criticism is that you act like the 1st Amendment is more important that Article I, section 8 of the same constitution, which allows Congress to enact laws to protect copyrights. I agree, as a matter of values, that it should be, but legally I don’t think this is the slam dunk that you think it is. The First Amendment does not protect a variety of speech —e.g., defamatory speech, fraudulent speech, speech advocating illegal activity likely to occur— so saying that it does not protect commercial speech designed to facilitate an illegal business transaction (a sale of copyright or trademark infringing good or service) so not that big of a stretch for a court to make or assume.
December 2, 2010, 1:06 amTechGeek says:
I don’t have a problem with that, if it is indeed commercial speech and if the court does find that this was a case of commercial speech designed to facilitate an illegal business transaction. However, I suspect one could make a pretty good argument that shutting down a website on these grounds ought to require a hearing where the court hears from more than just one side. (Whether the law does require such a hearing is beyond me; I’m talking about what kind of nation I want to live in, i.e., the “policy question”, rather than what the law actually requires.)
December 2, 2010, 3:13 amInstapundit » Blog Archive » DAVID POST: Copyright Enforcement Tail Wags Internet Dog, Cont’d; or, What the Hell Ever Happened… says:
[...] DAVID POST: Copyright Enforcement Tail Wags Internet Dog, Cont’d; or, What the Hell Ever Happened to Due Proce… [...]
December 2, 2010, 9:55 amBill Johnson says:
Well, they can hold your body for how long until they must press charges?
So what’s different about your physical assets?
But I agree it’s wrong wrong wrong. We no longer are a nation of laws, just men and regulations.
We’ve always been friends with Eastasia. We’ve always been at war with Eurasia.
December 2, 2010, 10:28 amMatthew says:
Rights infringement aside, isn’t this just one of many steps being taken by our oh so wonderful government that will bring back the good old sneaker net and/or black market(or bring it to the forfront because let’s be honest, It’s never gone away).
This also will drive customers overseas to more friendlier nation/states/corporations to spend money. If I have to worry about my domain/web servers being taken down here, I’ll go somewhere else, where the risk is less.
I thought it was in the constitution for congress to regulate commerce, not regulate it out of existence, or regulate it to somewhere other then the US.
December 2, 2010, 10:38 amDavid says:
Perhaps I shouldn’t be lecturing the lawyers on this, but please keep in mind that not every case of alleged infringement is open and shut. It’s bad enough when big companies, making absurdly broad claims, bully small fry who can’t afford to litigate. Now they can (and surely eventually will) summarily shut them down.
December 2, 2010, 11:03 amChris Travers says:
Worse, you could ATTACH files to the email…..
December 2, 2010, 11:22 amChris Travers says:
The problem with something like bittorrent though is that they are often used by the FOSS community to distribute software. If you go to Fedoraproject.com, you can download .torrent packages of the .iso images. This reduces the load on their servers and contains their costs.
Moreover, while IANAL, I understand that part of the issue is that practical elements of speech which facilitate crime are less protected than expressive elements. One could argue, I suppose that a bittorrent search site is something like a book on how to commit contract murder, or how to cheat on one’s taxes (the analogy that the 2nd Circuit used when looking at DeCSS). But I’m not sure that works in this case. Instead these sites provide information on distribution of files in a way which ignores copyright issues, and so it is more like a photocopy machine or a video cassette recorder. I think if it’s a choice between Betamax and Grokster as precedents, merely hosting a search engine for torrents would have to fall under Betamax unless you could show the sort of marketing of illegal uses that was at issue in Grokster.
December 2, 2010, 11:30 amCurious passerby says:
Hope! Change!!
December 2, 2010, 12:11 pmSaxon says:
Once you understand that the powerful special interest groups are the dog and Congress/Govt the tail, the rest falls into place.
December 2, 2010, 12:20 pmCurious passerby says:
Did you see where some of these sites were up again the next day by changing their TLD from .com to .info?
It’s fun to watch the government play whack-a-mole!
December 2, 2010, 12:21 pmted says:
But civil forfeiture is often based on simply on someone having been pulled over with $20,000 in the glove compartment and no good story about where it came from…
Several asians were arrested while driving in Louisina and their 70K was taken by the government. They were on their way to buy a fishing boat. Finally got their money back, but why is it the government’s business how much cash someone has? (in the absence of criminal activity, which driving while asian is not proof thereof…)
December 2, 2010, 12:38 pmM. Report says:
Set your precedent in a case against a villain,
thereby obtaining the consent of the virtuous,
and then watch with vast amusement their shock
when the precedent is used against them.
Whether the act is legal seems less important,
December 2, 2010, 12:46 pmto me, than whether it will be found Intolerable
by the public, further eroding their confidence
in the competence and trust in the truthfulness
of their government.
DRJ says:
Private property rights and big government don’t mix, especially with the current Administration. But we already knew that after Chrysler, didn’t we?
December 2, 2010, 2:32 pmAdam says:
SCOTUS rejected similar arguments in US v. Stevens.
December 2, 2010, 3:19 pmKim du Toit says:
“They are a very small group of individuals and so, for policy purposes, one has to weigh the needs of so many poorer people against the needs of a wealthy few.”
December 2, 2010, 4:34 pmRedistributionist nonsense.
So infringement of rights is okay, as long as only a FEW people are affected? And who says the “many” poor people have a right (let alone a need) to buy facsimiles (unlicenced, even) of popular brands? That distant laughter we can hear comes from Niccolo Macchiavelli’s ghost.
Don M says:
Any pencil or paper manufacturer is thus liable to be shutdown.
Hi Kim!
December 2, 2010, 4:57 pmChris Travers says:
The issue is that there is a long line of cases holding that the following are not protected under the 1st Amendment:
1) Software which makes stock purchase recommendations is no more protected than those purchase recommendations would be otherwise.
2) Software which exists for the purpose of circumventing the law is not protected when marketed for this purpose (see MGM v. Grokster).
3) Books that tell you how to cheat on your taxes are not protected.
4) Books that tell you how to commit contract murder are not protected.
5) Designs of H-bombs are not protected.
The simple rule that I can see here (IANAL) and in reviewing oral argument discussion in some of these cases is that expressive elements of speech are more protected than practical elements. In other words, those practical elements cross the line and become speech-as-conduct. I think this is a bad idea from a policy perspective for reasons too complex to go into here, but I’m not sure it’s a bad interpretation of the 1st Amendment per se.
So the question is speech as conduct vs speech as expression vs conduct as expression. This is different from the US v. Stevens issue which sought to ban speech as speech rather than as conduct.
In other words, suppose I say “To protest TSA virtual strip searches, I suggest that everyone leave small suitcases packed with bunches of carrots in airport restrooms outside the secure zone on December 21st.” Here we have political speech combined with a call for specific action. Whether that call to action could be regulated would be separate from whether the political portion could be regulated (the goal is clearly to disrupt airline service by leaving unattended luggage where airport security will be forced to assume the worst, often closing sections of the terminal, so it is practical in nature rather than expressive in nature).
Now looking over the list of seized domain names, these all seem to be places selling counterfeit designer handbags and the like. I don’t see anything involving copyright infringement at all, only trademark infringement, and only sites involved in selling tangible goods that are alleged to be infringing. It’s still deeply concerning though.
December 2, 2010, 5:18 pmAdam says:
Chris,
Thanks for the case cites. I wasn’t familiar with any of those really. Most at at the sub-supreme court level though and the Sup. Ct. one , the MGM case, doesn’t even seem to implicate the First Amendment at all.
Perhaps what you are hinting at is that, even though the govt argued in Stevens that the videos drove the crime/dog fighting, it was really an after-the-fact memorialization, and was thus “speech as speech” rather than speech inciting imminent illegal activity.
And, the most troubling part is that even if the sites had a lot of unprotected speech, they remedy sweeps the good speech (e.g. message boards on the site) in with the bad.
December 2, 2010, 6:18 pmDigital Society » Blog Archive » Intellectual Property: ICE-ing Up says:
[...] Larry Downes on Technology Liberation Front; Paul Rahe on Ricochet; AllahPundit on Hot Air; David Post on Volokh Conspiracy), probably because recent publicity over S.3804, Combating Online Infringement and Counterfeits [...]
December 3, 2010, 1:49 pmHomeland Security Violating Due Process, Free Speech In Internet Power Grab | Truth Is Scary says:
[...] professor David Post notes that the Department of Homeland Security is seizing entire domain names, not to protect national [...]
December 3, 2010, 2:02 pm