BOB GARFIELD:
Over Thanksgiving weekend the Office of Immigration and Customs Enforcement, or ICE, seized 150 domain names of websites allegedly selling counterfeit goods. It's the latest salvo in ICE's ongoing campaign to shutter sites that infringe on copyrights or sell counterfeits. ICE can seize a domain name without an injunction or even an accusation of wrongdoing, but only ones that end with .com or .org, since those are registered in the United States.
Now sites across the globe, with no legal recourse, are being forced to change their names. But one site is fighting back. A Spanish sports forum website called Rojadirecta.com claims that it was seized in February, not because it hosted infringing material, but because some of its more than 800,000 users linked to video streams that did violate copyright. So Rojadirecta's parent company Puerto 80 is suing the US to get its domain back.
Lawyer Mark Lemley represents Puerto 80. He says that under current law it's not clear if ICE actually has the authority to do what it's doing.
MARK LEMLEY:
The government is using what it calls the civil forfeiture authority. So if a government charges you with a crime, say you're dealing drugs out of your car, the government has the ability to seize the drugs and to seize your car because you were using it to commit a crime.
So what the government here is saying is a website is being used to facilitate the commission of a crime, criminal copyright infringement, and so the government can seize and shut down an internet domain name.
BOB GARFIELD:
Why is Customs enforcement, the Department of Homeland Security, doing this?
MARK LEMLEY:
The rationale, I suppose, is that this is a foreign website and so the information that comes across the internet is being imported into the United States, although, to be honest, I would've thought that ICE had more important things to deal with than playing rent-a-cop for the entertainment industry.
BOB GARFIELD:
Doesn't the Digital Milliennium Act actually hold third party sites harmless for potentially infringing content that they did not themselves place on the site?
MARK LEMLEY:
Yes, in the United States. But my client is in Spain and different rules apply.
BOB GARFIELD:
Okay, now let's get to the central element of your argument, and that is that the seizure of these domain names is the equivalent of breaking into a newspaper plant and confiscating the presses.
MARK LEMLEY:
There are two basic points. One is by seizing the entire domain name the government is, by definition, shutting down not just whatever infringing material is there but also the material which everyone agrees is non- infringing, forum discussions about soccer teams and the like.
And second, the government hasn't yet proven that there's infringing material on the site. And the First Amendment, under the doctrine of prior restraint, says you don't get to shut down speech in advance of a hearing in which a court decides whether or not that speech is unprotected.
BOB GARFIELD:
So when the Nixon administration tried to prevent The Washington Post and The New York Times from publishing the Pentagon Papers, the Supreme Court said, [LAUGHS] “Not so fast, you cannot preemptively shut down protected speech.”
MARK LEMLEY:
And there what the government was trying to do was block one article. Here, the equivalent of what the government is trying to do would be to say, “Ah, The New York Times has engaged in facilitating a criminal act, the disclosure of national security secrets, so we'll seizes The New York Times as a whole.”
BOB GARFIELD:
Now, we began this conversation with a discussion about the murky underlying law behind customs seizures. There is a bill, well actually, a couple of them, I believe, pending in Congress that would create the statutory authority for a government agency to act.
MARK LEMLEY:
There are bills pending now in the Senate - it goes under the name Protect IP Act, and in the House it goes under the name SOPA, or the Stop Online Piracy Act - that would perhaps create statutory authority for what the government is already doing, and it would also expand that authority.
So those bills would give customs enforcers the power to seize not just domain names located in the United States, the dot-com or dot-org domains, but even to go after domains located entirely abroad.
And if they could get a court order, even a temporary one, to declare them to be foreign infringing websites, they would then go to every internet service provider, every credit card company, every search engine and every advertiser and say, you must stop dealing with these people; even if people type in the domain or the IP address, you can't route traffic to those domains. So they would essentially ban those sites from the internet.
BOB GARFIELD:
I can only imagine the First Amendment ramifications of those acts.
MARK LEMLEY:
You could think of this, I think, as the sort of great firewall of America. China has an effort to block websites that it considers dangerous, like Facebook or Twitter. That makes it awfully hard for us to say to countries around the world, “Hey, you shouldn't be censoring the internet.” Countries are simply gonna say, “Well you censor the internet when the internet includes something that you don't like.”
BOB GARFIELD:
Mark, thank you very much.
MARK LEMLEY:
Thank you for the opportunity.
[MUSIC UP AND UNDER]
BOB GARFIELD:
Mark Lemley is director of the Stanford program in Law, Science and Technology.
The Office of Immigration and Customs Enforcement declined our request for comment, saying that it is, quote, "precluded from commenting on cases pending before the court."
