All Your Websites Are Belong To U.S.!!!

If you run a website, don’t link out to other sites that house copyrighted material.  That is apparently the message being sent as the United States government recently seized the domestic domain names for the Spanish website Rojadirecta.

Apparently, the jig is this: Rojadirecta operates a website that lets users post to message boards to talk about sports, politics, whatever.  In addition, Rojadirects posts links to streaming video of sporting events – some of which is pirated.

The government, meanwhile, has been engaged in “Operation in Our Sites,” an effort to crack down on intellectual property fraud by seizing domains that either directly infringe on intellectual property rights, or that induce such infringement.

The First Amendment implications of such seizures are significant.  In this case, the government seized a domain after securing a warrant from a magistrate judge, apparently under the guise of probable cause that the site was engaged in infringement.  If video streams were being hosted directly on the website, then the government would have a much stronger case that the infringing site could be seized.   But in the case of Rojadirecta – where much of the speech on the website was pure speech and the infringing videos were only being linked to – the ex parte domain seizures smack of prior restraint and censorship.

It’s also important in here to look at what the seizures are meant to accomplish.  Originally, the seizure statutes were designed to preserve and protect evidence so that it would be available at the time of trial.  Considering that (a) Rojadirecta is operating a business and would likely have the motivation to, you know, continue making money by keeping the site up, and (b) it would be easy for the government to document the existence of the offending links even if Rojadirecta wanted to remove them from the site prior to trial, the justification to seize the site on the belief that the site would be removed or otherwise changed is porous at best.

It’s hard to say how effective “Operation in Our Sites” will ultimately be.  It appears that the government is merely seizing domain names, not hosting accounts, so presumably sites that have had their domain names seized can easily just redirect a new domain name to the same preexisting site files.  But there’s value in having and keeping a recognized domain name over time – not only in visitor recognition, but also as a factor in boosting search engine rankings.  Plus, not every website owner will have the financial resources to fight a seizure that is wrongful.

I’m not arguing that all of the seizures under “Operation in Our Sites” violate the First and Fourth Amendments and our notions of due process.  But the case of Rojadirecta is on the outer boundary of what should really be considered copyright infringement, and I don’t think it makes sense to trample First Amendment rights while we determine where that boundary lies.