Federal Judge Refuses To Return Domain Names, Claims Loss Not “Substantial Hardship”

Seized ServersAccording to New York Federal District Court Judge Paul A. Crotty, the U.S. Immigration and Customs Enforcement (ICE) does not have to return two domain names that the government seized earlier this year. The primary reason given? The Spanish company has registered alternate domain names.

The domain names were seized in February due to claims (probably by FOX) of copyright infringement. However, Puerto 80 has prevailed in Spanish courts — twice — when challenged that content on Rojadirecta.com and Rojadirecta.org violated copyright. The site is an index (portal) to online sports events but also hosts discussion forums. It contains no advertising, and it hosts no content. Coincidentally (not!), the seizure happened just before the 2011 Superbowl, which was broadcast by FOX.

From the ruling (pdf) (emphasis added):

Puerto 80 argues that if the Government does not immediately release the domain names, Puerto 80 will be caused substantial hardship … Rojadirecta has experienced a 32% reduction in traffic since the seizure and that continued seizure will cause further erosion of goodwill and reduction in visitors.

… Puerto 80 has, since the seizure, transferred its website to alternative domains which are beyond the jurisdiction of the Government, including www.rojadirecta.me, www.rojadirecta.es, and www.rojadirecta.in. (Gov’t Mem. 11, Pl. Mem. 10 n.5.) The United States Government cannot seize these foreign domain names … Rojadirecta has a large internet presence and can simply distribute information about the seizure and its new domain names to its customers.

I believe that 32 percent drop in website traffic connotes ‘reasonable’ harm, don’t you?

The judge (appointed to the court in 2005 by President Bush [1]) was not convinced there is “harm” because Puerto 80 “does not explain how it generates profit or argue that it is losing a significant amount of revenue as a result of the seizure.” “Harm” can only be measured in dollars and cents?

Moreover, as EFF notes:

The fact that you can get information via a second route does not mean that there is no speech problem with shutting down the first one. In a 1939 case, Schneider v. New Jersey, for example, the Supreme Court held that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.”

It repeated this basic tenet some forty years later in Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.: “We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means . . . .”

As if misapplying the relevant substantive First Amendment analysis wasn’t bad enough, the court failed to even address the fatal procedural First Amendment flaws inherent in the seizure process: namely, that a mere finding of “probable cause” does not and cannot justify a prior restraint.

ArsTechnica provides additional background:

Puerto 80 says that after weeks of playing phone tag with federal officials, it was told that it could only have the domain names back if it agreed not to “link to any U.S. content anywhere on its sites anywhere in the world.” Since this demand clearly exceeded what was required of it under copyright law (and arguably violated the First Amendment), Puerto sued for the return of the domain names.

There are several important things to consider:

  • U.S. Immigration and Customs Enforcement (ICE) can shut down websites without notice. Yeah, this is Department of Homeland Security working hand in glove with U.S. corporate interests.
  • Copyright is corporate business (there’s a reason Congress extends copyright law terms every time Mickey Mouse is about to go public domain). Why does U.S. law trump Spanish law in this case?
  • Why does the First Amendment not apply to Spanish businesses with U.S. customers?
  • Federal judges don’t seem to know enough about Internet technology to be making case law.
  • DHS can only seize domain names like COM and ORG? Maybe it’s time to migrate domains if free speech is a concern.
  • And look at the claimed conditions under which our government would return the seized property! Not only is this a violation of law, it’s impossible because the site hosts discussion forums! You know, with individuals who post links to stuff. O.M.G.

This is your government at work, hand-picked, run and controlled by corporate America.

[1] Crotty has a pro-business bias. He was corporate counsel for Verizon from 1994-1997 and Verizon Regional President of New York and Connecticut from 1997-2005.

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