Has the Quest to Quelch Piracy Gone Too Far?: Government Overreach in Forfeiture of Linking Websites
39 Pages Posted: 24 Apr 2013 Last revised: 30 Dec 2013
Date Written: January 28, 2013
Recently, Immigrations and Customs Enforcement has been seizing domain names as part of its “Operation: In Our Sites” initiative to combat online piracy. The procedure allows seizure based on a warrant asserting probable cause that copyright infringement is facilitated on these sites. The sites may be administratively forfeited if the domain owner does not contest the seizure. If the domain owner does contest the seizure, the government must file a judicial forfeiture action. Recently, Congresswoman Zoe Lofgren has proposed a reevaluation of the procedures used in seizing domain names.
While the First Amendment and Due Process implications of civil forfeiture procedures have been thoroughly debated, the specific topic this paper addresses is whether the government can sufficiently allege a cause of action justifying forfeiture of domain names of linking websites under the copyright infringement statutes, 17 U.S.C. § 506 and 18 U.S.C. § 2319. Particularly, this paper looks at the case of Rojadirecta, one of the rare cases of a domain owner filing a petition for the release of its seized domain name. Rojadirecta was a linking website, meaning that it does not directly infringe upon copyrights but merely serves as a place where direct infringers can post links to their sites. Eventually, the government voluntarily dismissed its case and returned the domain to Rojadirecta, but this paper argues that, under applicable copyright law, the government could not have succeeded in using civil forfeiture to take down linking websites. This paper concludes by looking at proposed copyright law reform and suggesting how new laws could affect the merits of a civil forfeiture action.
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By Guy A. Rub