Our ever-vigilant Homeland Security agents, having apparently decided that they have too much time on their hands and have taken care of the Really Bad Guys, are helping to make sure that we are all safe from unauthorized transmissions of the Super Bowl broadcast, and have “seized” a number of domain names belonging to Internet sports retransmission sites. I blogged about this a while back [see “Copyright Enforcement Tail Wags Internet Dog, Cont’d; or, What the Hell Ever Happened to Due Process?”, so I won’t repeat the arguments I raised there — if this isn’t an unconstitutional deprivation of due process, it damned well oughta be. There’s a good reason we don’t generally allow agents of the State to march into judge’s chambers and deprive people of their property without an adversary hearing, viz., they’re likely to make errors that can be difficult to correct ex post. These ridiculous seizures — seriously, don’t Homeland Security agents have better things to do??? — are good illustrations; some of the sites turn out not to be retransmission sites at all, but rather indexes and compilations of other sites where sports content is available (such as the Spanish site listed in the Huffington Post article, Rojadirecta.org). Now, there are circumstances in which sites linking to other infringing sites are themselves liable for infringement, and circumstances in which they’re not; that’s a pretty nuanced analysis (involving, among other things, an inquiry into the “actual knowledge” on the part of the linking site that the linked sites contain infringing content, and application of a “safe harbor” in Section 512(d) of the Copyright Act for providing “information location tools.” And under Spanish law, too, things are complicated and nuanced — apparently, a Spanish court recently decided this very question, and held that the Rojadirecta.org site was NOT liable for copyright infringement. But now federal agents have been able to shut it down, based on nothing more than the affidavits from copyright holders alleging infringement (and the mere happenstance that the ORG domain registry is located in the US, leading to the absurd fiction that the domain names can therefore be “seized” if they are connected to unlawful activity).
Oh, and it’s a total waste of time — did I mention that? A few hours after the site went dark after the “seizure,” it was back up an running using a different domain name (.ES instead of .ORG, outside the jurisdiction of the US courts).
Post is a professor of law at Temple University’s Beasley School of Law, and an expert in cyberlaw.