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Private, Subsidized Cartels

On February 6, 2012, in Uncategorized, by Scott Alexander Meiner

ICE announced a record haul at the annual Immigration and Customs Super Bowl press conference. The joint press conference between the NFL, Immigration Customs Enforcement (ICE), and US Customs Border Protection (CBP) claimed $4.8 million in NFL related seizures, 307 websites, and 1 arrest on a single count of criminal infringement of a copyright.

ICE’s press release states that agents have been “targeting stores, flea markets and street vendors selling [allegedly] counterfeit game-related sportswear throughout the country.”

ICE announced “22,570 items of [allegedly] counterfeit merchandise and clothing representing other sports leagues, including Major League Baseball, National Basketball Association and National Hockey League were seized by law enforcement.”

The website seizures come pursuant to Operation Fake Sweep, the 10th publicly announced phase of Operation In Our Sites.

This is part of a wider trend. The seizures are frequently executed at the behest of private corporations or trade industry groups. Scant attention is given to the rights of the people accused of copyright infringement. Hearings are typically held without consulting the accused. The accusers are often biased. Corroboration is often given by the accusers who have a motive to quash competition. And the rulings are, frequently, overbroad.

Chanel (of Coco Chanel) convinced US District Judge Kent J. Dawson to give an ex-parte order seizing hundreds of domains on the word of a private investigator-paid for by Chanel. Conjuring dystopian flashbacks of the Tokkō Thought Section, Judge Dawson ordered the domains,

“shall immediately be de-indexed and/or removed from any search results pages of all Internet search engines including, but not limited to, Google, Bing, and Yahoo, and all social media websites including, but not limited to, Facebook, Google+, and Twitter until otherwise instructed by this Court or Plaintiff that any such domain name is authorized to be reinstated, at which time it shall be reinstated to its former status within each search engine index from which it was removed.”

The seizure of Dajaz1.com, a Hip-Hop blog, was apparently instigated by the VP of Anti-Piracy Legal Affairs for the RIAA, Carlos Linares. The government quickly ran into the problem of not being able to meet a probable cause burden. Undeterred, the government filed repeated secret extensions, issued under court seal.  After more than a year, ICE decided to return the site. Ars Technica quoted the prosecution, ”the government concluded that the appropriate and just result was to decline to pursue judicial forfeiture.” 

In response to Freedom of Information Act requests, ICE released hundreds of heavily redacted pages-including 144 pages that are completely redacted (Techdirt.com’s archive of the FOIA responses).

Think about that. The government, on a tip from a third party who doesn’t like you (or your business), seizes your business-relying on that third party’s assessment of whether you committed an infraction.  It does this without notifying you or providing you opportunity to object. When you challenge the seizure, the government repeatedly files secret extensions, that you can’t see, postponing probable cause hearings. After your story gains media traction, it drops the seizure and redacts information about the seizure.

It doesn’t even offer you an apology.

In the meantime, you’ve been deprived of your business for a year. You’ve been accused, by your government, of crimes for which it can’t even meet a probable cause burden.

And, you’re not allowed to know what happened or why.

But you needn’t even be a U.S. citizen (or a U.S. firm) for our government to seize your property on the wants of private industry.

Consider Puerto 80, the Spanish parent company of Rojadirecta.com and Rojadirecta.org.

The Rojadirecta sites were seized by the US government for providing links to independent sites streaming sporting events from the NFL, NBA, NHL, WWE and the UFC. It’s not completely clear who triggered the seizures but Zuffa (the parent company of Ultimate Fighting) appears to be one of the instigators. Nonetheless, Spanish courts have (twice) found Puerto 80 to be legal. Yet, our government argues that because a foreign company hasn’t done enough to protect the copyrights of US sports leagues, the US government should seize their property and retain it until, and if, US courts decide otherwise. Puerto 80′s Rojadirecta.com and Rojadirecta.org were seized a year ago. In the meantime, our government has made some disturbing arguments about free speech and appears to have made up laws.

Put aside the grotesque rights violations. Those are pretty obvious…. Why are we paying? We have a legal system worked out for this. It works. It is safer than granting de facto seizure power to any moneyed interest that wants to make another business or industry go away. If these are real damages (from someone other than our government), then Company A can sue Company B for damages. That sounds more reasonable than thousands of federal agents sweeping through all the flea markets and all the street vendors of our nation looking to proactively seize material that might be counterfeit? Or issuing orders to eliminate all mention of certain domains before a trial?





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1 Response » to “Private, Subsidized Cartels”

  1. [...] reports that the U.S. Government gave notice of voluntary dismissal of its complaint for forfeiture against Rojadirecta.com and Rojadirecta.org. The decision comes in light of a recent opinion from the United States Court of Appeals for the [...]

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