More Domain Seizures from DOJ/ICE: Spanish Website Seized Despite Legal Status in Spain

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According to Techdirt and Torrentfreak, the Department of Justice and Immigrations and Customs Enforcement have seized more domains on the grounds of copyright infringement (coverage of earlier seizures here, here, and here). Notably among them is the Spanish site Rojadirecta.org now redirects to a DOJ/ICE splash page identical to those used in earlier seizures. What's notable about this seizure, though, is that Rojadirecta was ruled as not infringing copyrights by Spanish courts before.

Nor does it seem that Rojadirecta was found liable for copyright infringement in the U.S. According to this early coverage, Rojadirecta was not directly contacted by authorities, and their U.S.-based registrar, GoDaddy, didn't "touch anything" relating to their accounts. Unless foreign agencies were involved in this operation, it would seem that the jurisdictional link to the U.S. would be Afilias (an Irish company with offices and operations throughout the world, including the U.S.), which provides DNS service for the .org registry.

Seized Until Proven Innocent

These domain name seizures, and the problems associated with them, provide something of a preview to problems that could be exacerbated by the passage of COICA. In both cases, you have authorities removing users' access to websites without those websites having the opportunity to defend themselves in court. The punishment, in this case, precedes the trial.

Some sites might very clearly be infringing copyrights. But providing a quick and dirty mechanism for someone to take down any website at all creates a situation ripe for abuse. Practically and legally, copyright is a complex area. This is not only in the determination of flexible legal concepts like fair use, but even in the practical aspects of figuring out who granted whom permission for posting, who posted the material, and what the host needs to do about potentially infringing users. All of the necessary facts to resolving liability can be hard to find out, and law enforcement can make mistakes, particularly in areas of emerging technology.

This is why it's all the more important that those accused of infringement don't have their domain names simply yanked away from their sites, especially if they have a colorable defense and are willing to hash out the questions of legality in court. It's odd to have to put it in those terms, since you'd expect that one shouldn't have to prove a defense in order to reach the courthouse in the first place. But apparently, that's just the way we do things with copyright enforcement: say goodbye to your domain name, then prove your innocence.

Some of the sites taken down before, like OnSmash and RapGodfathers, have claimed that many of the tracks they are alleged to be infringing were actually given to them for sharing purposes by the labels. But they weren't given the opportunity to make that argument before the domain went down. YouTube has been sued for billions of dollars for allegedly infringing copyrights, but has prevailed on the merits in federal court. What would have happened had DOJ and ICE simply yanked youtube.com before it had a chance to mount its lengthy and involved defense? Hundreds of other sites and domains operate in the range between the defined bounds of what is and isn't legal under the constantly evolving digital copyright law. It shouldn't be up to the snap judgment of a government agency to make the decision as to which domains get to live and die on the web.

Domains in Spain Risk Retaliatory Refrain

That's bad enough when there's a legal controversy over a particular site or practice and a law enforcement agency decides to start seizing property based upon its own untried interpretation of the law. But the fact that Rojadirecta, a Spanish site, had actually been ruled noninfringing in Spanish courts, adds a whole new layer of trouble to this issue. It suggests that, should we disagree with another country as to the status of Internet content coming from that country, the appropriate response is to block its entry to those in the U.S.—not to engage with foreign legal systems, law enforcement, or even the alleged infringer directly.

This sort of response—defaulting to disconnection rather than engagement—is precisely the opposite of our foreign policy messaging in those cases where we believe content is legitimate and others don't. The United States regularly criticizes other countries for their blocking of access to content we consider protected. And that's not just in repressive regimes, either—State Department officials have expressed concerns to the Australian government regarding proposals for Internet filtering there.

These actions therefore undermine a key value in our foreign policy to favor openness and access in communication, making it all the harder to ask other countries to engage with disfavored content rather than disconnecting.

The jurisdictional hooks by which these seizures seem to have operated—and by which COICA is supposed to operate—also create invitations to balkanize the Internet. The U.S. government, taking actions against a foreign site based upon a small jurisdictional footprint, could result in other countries doing the same to U.S. sites they disfavor, whether those sites are critical of their governments, allow more vociferous debate, or are simply deemed too racy for those countries. This is not a random hypothetical. The many services using the .ly domain, including the popular URL-shorterner bit.ly, are using the ccTLD of Libya, which has notably shut down domains without notice. An enterprising forum-shopper might just want to take advantage of facts like that, either in Libya or in some other country with an attractive ccTLD and pliable enforcement mechanism.

In the meantime, the seizures seem to continue, and COICA remains on the horizon, promising more of them.

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