Last year, agents with the Immigration and Customs Enforcement division of the Department of Homeland Security (ICE) implemented “Operation In Our Sites,” an anti- piracy initiative to take down websites that allegedly host or facilitate access to copyright-infringing material. Enforcement sweeps commenced by warrant, ordering the targeted domain name operator(s) to transfer ownership the United States government. Once transferred, the websites were taken down and replaced with a seizure notice similar to the one that appears here.
Most of the legal discourse on “Operation In Our Sites” seems to center around First Amendment and Due Process issues. One such issue is that most of the websites that ICE seizes do not host copyright protected content. Nevertheless, ICE seizes these websites on the theory that targeted domain names are “property,” used to induce copyright infringement by encouraging viewers to follow links to third party websites that may host copyright protected content. ICE seizes the targeted domain names immediately upon service of the warrant, without affording owners or operators the opportunity to defend.
In rem jurisdiction over a domestic entity may follow from an inducement theory of secondary liability; but many of the domain names that are targeted for seizure are owned or operated by foreign entities. Talk about a long arm statute! ICE is not only subjecting foreign entities to United States jurisdiction, but in seizure of these domain names, ICE is denigrating the sovereignty of foreign legal systems. Take for instance, rojadirecta.com, a now seized Spanish website that once allowed visitors to stream sporting events online. Spanish courts have consistently ruled that linking to infringing material is not in itself copyright infringement, in non-commercial use cases (Judge Rules P2P Legal In Spain Yet Again). In the case of Audiovisual Sport v. Rojadirecta, where Rojadirecta “indexe[d] HTTP links to sports streams that can already be found on the Internet,” the Madrid District Court held that Rojadirecta could not be found to be infringing copyright since it did not host any copyright protected content. In a final appeal, the Madrid Provincial Criminal Court upheld the District Court’s decision. (Sports Streaming / Torrent Links Site Victorious in Court). Rojadirecta.com is non-infringing and legal under Spanish Law; ICE reached out across the Atlantic Ocean and, without regard to the Spanish legal system, seized rojadirecta.com.
Interestingly, Puerto 80- the company behind rojadirecta.com- does not make this jurisdiction/due process/ sovereignty argument in their Motion to Dismiss. Instead, Puerto 80 argues the MTD on the merits. The Motion, as it turns out, fails (US judge won’t return seized URL to Rojadirecta.com, absolutamente no).