Alex Goldman is a producer for On the Media. One time he got run over by a car.
US Government Returns Seized Domain Names
Thursday, August 30, 2012 - 10:25 AM
In December of last year, we spoke to lawyer Mark Lemley, who was representing a Spanish sports website called Rojadirecta, which had it's domain names seized by the US Government. Rojadirecta, a Spanish website, was accused of knowingly allowing users to post links to infringing content. But according to Wired, yesterday, the U.S. Government quietly dropped their case against Rojadirecta.
Here's our interview with Lemley:
From the Wired article:
The government, which seized the domain names for simply including links to copyrighted content, dropped the Rojadirecta claim, seemingly due to a recent ruling by Judge Richard Posner. Posner, one of the nation’s most respected judges, knocked down charges that a video bookmarking site was infringing copyright law, just because its users linked to copyrighted videos.
In a letter accompanying the motion to dismiss, the government told the New York federal court that it had changed its mind:
The Government respectfully submits this letter to advise the Court that as a result of certain recent judicial authority involving issues germane to the above-captioned action, and in light of the particular circumstances of this litigation, the Government now seeks to dismiss its amended forfeiture complaint. The decision to seek dismissal ofthis case will best promote judicial economy and serve the interests of justice.
In our interview with Mark Lemley he told us that this kind of seizure would likely be illegal if the site was hosted in the United States, and that he believes this kind of seizure shuts down non-infringing speech in an effort to limit infringing speech.
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?
Yes, in the United States. But my client is in Spain and different rules apply.
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.
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.