DOJ seizes domain names of more than 70 websites suspected of piracy

posted at 1:59 pm on November 27, 2010 by Allahpundit

The good news? If Ed’s post last week about the COICA bill pending in Congress had you worried, you can rest easy. A day after he posted that, Democrat Ron Wyden vowed that he’d put a hold on the bill unless major changes were made. That means it’s dead in the lame-duck session, and with more Republicans in the Senate come January, conservative opponents of COICA will have a bit more leverage next year to kill it outright.

The bad news? Turns out that the feds don’t need COICA to seize domain names after all.

Federal authorities have shut down more than 70 websites in one the broadest actions yet against companies the government suspects of selling counterfeit or pirated products.

Visitors to the affected sites–which offer such diverse goods as scarves, golfing gear and rap music–are greeted with a notice stating their domain names have been seized by U.S. Immigration and Customs Enforcement. The notice cites penalties for willful copyright infringement and trafficking in counterfeit goods…

Peter Eckersley, senior staff technologist at the San Francisco-based Electronic Frontier Foundation, said he had heard reports that some domain names had been seized without giving their owners a chance to make a case that their operations are legitimate. “Any time you are going to take a site down, and potentially put a business out of business, they should have an opportunity to represent themselves before that happens,” he argued.

Under a law called the Digital Millennium Copyright Act, websites can typically avoid legal liability for copyright infringement for video or music that users post on their sites if they take it down upon the request of copyright holders.

Quoth the owner of Torrent-Finder, “My domain has been seized without any previous complaint or notice from any court!” Can the feds do that? Well, if you follow the last link and look at the notice they’re posting on the seized sites, it refers you to 18 U.S.C. 981 and 18 U.S.C. 2323. Section 2323 basically says that property is subject to civil forfeiture to the government if you’re using it for the purpose of willful copyright infringement. Section 981(b) lays out the rules the feds need to follow to get court approval for the seizure: In most cases, it’s the same as it is to get a search warrant under Rule 41 of the Federal Rules of Criminal Procedure. Section 981(b)(3) lets the property owner challenge the seizure by filing a motion with the court that issued the warrant (as does FRCrP 41(g)) — but not until after your domain’s already been taken over and knocked offline. In which case … how is this significantly different from COICA? After all, one of Ed’s concerns in last week’s post was that website operators should have a right to be heard by a judge before their sites are nuked. The financial risk to an online business from being seized erroneously is simply too great to let the feds act first; better to suspend seizures until after there’s been a trial, when we know for sure per a jury’s verdict that infringement actually occurred. And yet that’s not what our current scheme provides. COICA may be worse, but from what I can tell from my exceedingly limited knowledge of the statutes here, “seize first, ask questions later” appears to be the current policy as well.

Which raises the question: How much worse is COICA? Wired tried to explain it this way:

Among the sites that could go dark if the law passes: Dropbox, RapidShare, SoundCloud, Hype Machine and any other site for which the Attorney General deems copyright infringement to be “central to the activity” of the site, according to Electronic Frontier Foundation, a digital rights group that opposes the bill. There need not even be illegal content on a site — links alone will qualify a site for digital death. Websites at risk could also theoretically include p2pnet and pirate-party.us or any other website that advocates for peer-to-peer file sharing or rejects copyright law, according to the group.

Again, I’m not sure how different this is from the current framework. One of the complaints at the site Torrent Freak, in fact, is that the Torrent-Finder site that was knocked offline yesterday essentially is just a big search engine directing you to other torrent sites. Section 2323, though, already says that your property is subject to forfeiture if you’re using it to “facilitate” willful copyright infringement, so in theory, yeah, merely posting links to other infringers should count. The deeper issue here is why Torrent-Finder gets nuked while a site like YouTube, which hosts plenty of infringing content on its own servers, only has to deal with takedown notices for individual files under the DMCA. Presumably it’s because there’s already a de facto standard being used about whether infringement is “central” to the site’s activity: Lots of people use YouTube to upload their dopey homemade cat videos or whatever, but if you’re messing around at Pirate Bay, chances are you’re looking for something that might otherwise cost money to see. The potential problem with COICA, then, is that by codifying a “too much piracy” test, it might encourage the feds to expand the hazy standard they’re already basically using.

There are other reasons to oppose COICA — for instance, it would block credit card companies and ad networks from doing business with a targeted site — but the “seize first, ask questions later” approach is what seems to be most troubling to people and yet here we are already seeing that in action. Have I gone wrong here somehow, copyright lawyers? I’m an almost complete IP amateur, so if I’ve confused something, please e-mail/comment and I’ll update.

Update: Belated exit question: After a huge midterm backlash to big government and a high profile “don’t touch my junk” TSA rebellion online, is this really the best moment politically for the feds to start grabbing people’s domain names?


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Comment pages: 1 2

So if torrent-finder is just a search engine, how is it any different than going to Google and typing in “name of anything” torrent, then getting 50 pages of links to that torrent?

Beyond that, how is this any different than, say, me using Google Sites or Google Docs to distribute any file I want?

Oh yeah, Google owns this administration. Nevermind.

aic4ever on November 27, 2010 at 8:14 PM

Sweet. So a party operative can visit an opposition forum/message board, post a link to an illegal download and the Feds can take the site.

That’s pretty convenient, actually.

lorien1973 on November 27, 2010 at 2:16 PM

Only those opposed to Eric Holder’s view of the world.

Of course, AP just linked to Torrent-Finder. So now this site links to a site that links to illegal thoughts content, therefore subject to being shut down.

barnone on November 27, 2010 at 8:17 PM

The deeper issue here is why Torrent-Finder gets nuked while a site like YouTube, which hosts plenty of infringing content on its own servers, only has to deal with takedown notices for individual files under the DMCA.

Youtube is owned by Google, a major billion-dollar corporation, so naturally the feds will pick on those who can’t easily fight back. Yes, the laws are supposed to apply to all equally, but is anyone really surprised that huge corporations are given the benefit of the doubt?

There Goes The Neighborhood on November 27, 2010 at 8:19 PM

Stock prices of off-shore mirror hosting sites just jumped another couple of points…

barnone on November 27, 2010 at 8:19 PM

Ward Cleaver on November 27, 2010 at 5:45 PM

Whew! My hubbys’ fav sites are not on the list.

FLKraKa on November 27, 2010 at 9:20 PM

but if you’re messing around at Pirate Bay, chances are you’re looking for something that might otherwise cost money to see

Just because someone, somewhere is charging money for something doesn’t mean it’s wrong to get it for free somewhere else.

Ortzinator on November 27, 2010 at 9:30 PM

Something tells me this is more about politics that copyright infringement.

Slowburn on November 28, 2010 at 12:15 AM

Just because someone, somewhere is charging money for something doesn’t mean it’s wrong to get it for free somewhere else.

Ortzinator on November 27, 2010 at 9:30 PM

Most twisted selfish logic evah! A copyright is a copyright.

John the Libertarian on November 28, 2010 at 12:23 AM

The IP that all of these domains are now pointed to is controlled by Caro.net .

If I had anything hosted by them, I’d be moving it quickly. I don’t need my web hosting to be THAT close to government shenanigans.

drdroo on November 28, 2010 at 12:28 AM

Is this intended to be a slap in the face of the newly elected Republican Congress? Basically a way of telling Congress, “We don’t need you to pass a law: we can do whatever we like with an executive order?”

The timing certainly seems suspicious, occurring maybe a week after Congress shut down the proposed COICA law.

Yes, I realize that Congress is still Democrat-controlled. But if the Democrat-controlled Congress is not playing ball with the Obama administration, I could still see this sort of thing happening.

There Goes The Neighborhood on November 28, 2010 at 1:21 AM

but if you’re messing around at Pirate Bay, chances are you’re looking for something that might otherwise cost money to see

Just because someone, somewhere is charging money for something doesn’t mean it’s wrong to get it for free somewhere else.

Ortzinator on November 27, 2010 at 9:30 PM

True enough. A good example is open source software. You have the right to sell it for whatever price you want, but you can’t prevent anyone you sell it to from giving it away, because you don’t own the copyright.

Another example would be public domain software, books, or music. It’s freely available, but if you go to the trouble of pulling together a good collection and someone is willing to pay you for your collection, you can just as easily sell it at the same time as others are giving it away.

But let’s not fool ourselves into thinking that you have the right to give away what belongs to someone else, if they still hold the copyright. My objection is not to shutting down a site that is actually violating copyright, but to the high-handedness of shutting down the domain without due process.

There Goes The Neighborhood on November 28, 2010 at 1:30 AM

The deeper issue here is why Torrent-Finder gets nuked while a site like YouTube, which hosts plenty of infringing content on its own servers, only has to deal with takedown notices for individual files under the DMCA.

A tangential comment follows…

YouTube is, as most everyone knows, a part of Google. Google is, as most everyone knows, a part of the Obama Administration by one degree or another (I’m taking a bit of a liberty there with the association-tree relationship) and certainly Google is a big-time Democratic Party “associate” by a million hooks or another.

Another part of Google, as most everyone also knows, is their hosting arm, blogspot, for the notoriously “anonymous” authors who post a great deal of objectionable, offensive and sometimes threatening content especially by Leftwingers when their targets are Conservatives or those the Left perceives to be “in their way” socio-politically.

Anyone troubled by any content on Google can contact Google ’till the moon doesn’t rise, requesting “take downs” of information as described, both copyright offenses and threats, offenses, entirely objectionable personally compromising content hosted on Google.

And Google ignores those requests.

I strongly doubt that ICE — the Obama Administration currently engaged in denying due process to websites and domains they target — is going to ever rock Google’s float REGARDLESS of whatever. In my experience, Google will deny just about every request to remove content EXCEPT when that content bothers Google’s (and their associates’) socio-political views.

So in my view this disturbing behavior on and about the internet by the current Leftwing who controls the hammer, or assumes that they do, is entirely socio-political and is denying (and offending to) our Constitutional rights.

Lourdes on November 28, 2010 at 4:27 AM

Let me add that I don’t agree with music piracy. Or the knock-off ‘industry’. But I do recognize the rules and expect my government to do so, also.

Serve a take-down notice. If it’s obeyed, issue is or should be resolved, legitimately.

I’m also pondering just what ICE is doing taking websites down and hijacking domains. If they have staff and other resources to do THAT, what’s their problem with failure to enforce against illegal aliens, not to mention the DoJ’s war with Arizona?

Lourdes on November 28, 2010 at 4:32 AM

Something tells me this is more about politics that copyright infringement.

Slowburn on November 28, 2010 at 12:15 AM

Obama, Nancy, Harry, Dick, Barney, et al. are mad about Novemeber’s election results.

Lourdes on November 28, 2010 at 4:33 AM

So the DOJ can seize domain names for potential copyright infringement but can’t seize Wikileaks’ domain name for possible treason? What is wrong with this picture?

eaglewingz08 on November 28, 2010 at 9:04 AM

Two points:

1) Guilty until proven innocent? Great!

2) Google is as guilty as any isohunt or mininova. go ahead, type the following into google (without the quotes) and see for yourself:

“beatles site:mediafire.com”

ernesto on November 28, 2010 at 11:07 AM

So the DOJ can seize domain names for potential copyright infringement but can’t seize Wikileaks’ domain name for possible treason? What is wrong with this picture?
eaglewingz08 on November 28, 2010 at 9:04 AM

Precisely. Criminal publication of national and international secrets is just fine with our rulers, but something that SHOULD be limited to the civil courts is seized and put under dumbass Holder’s jurisdiction.

LegendHasIt on November 28, 2010 at 11:52 AM

Internet piracy is completely out of hand, to the point that any mouth-breather with access Google and a torrent engine can steal hundreds of dollars worth of software in the space of a couple days. I don’t even see the regular popular file-sharing sites (like Megaupload) making any real effort to purge the pirated material that is regularly uploaded to their services. Two staff members doing searches on their own sites would easily find thousands of links.

But that said…

Convict first, then confiscate.

Dark-Star on November 28, 2010 at 1:20 PM

and remember it’s the conservatives that are fascist. Good thing we don’t have Bushitler anymore, huh?

pgrossjr on November 29, 2010 at 9:35 AM

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