Domain Raids Revive COICA Concerns

Published May 31, 2016

An early February federal government crackdown seized 82 domain names of Web sites accused of copyright violations. Dubbed Operation in Our Sites, the joint effort included the U.S. Justice Department, the Department of Homeland Security, and nine U.S. Attorneys’ offices, targeting sites that allegedly distributed or sold illegally copyrighted or counterfeited goods.

The operation marks the first time since last November’s so-called Cyber Monday when government agencies seized and closed down Web sites and domains authorities suspected of violating U.S. copyright laws.

Both the November 2010 and February 2011 seizures have raised concerns similar to those expressed regarding the Combating Online Infringement and Counterfeits Act. COICA was passed by the House of Representatives last November and is currently before the U.S. Senate.

Prominent COICA opponents include Rebecca Jeschke, media director for the Electronic Frontier Foundation, a San Francisco-based public policy and free-speech, privacy, and consumer advocacy group. Jeschke notes EFF takes issues with many aspects of COICA: “The seizures in November and February raise a lot of problems,” she said. “Perhaps the most important is the lack of transparency displayed in the two raids that have already occurred. Why pick one site and not another?”

Jeschke says Cyber Monday and Operation in Our Sites ignored due process and failed to give any notice to sites prior to seizing them.

‘Playing by Rules’

One of the things that happens when sites are seized, said Jeschke, is all content on the site is impacted. “Sometimes when authorities seize the whole site, they also seize discussions, so you’re losing the community as well,” she said. “It’s quite possible the seizures could be hurting new products that may turn into a new source of revenue for artists.”

Maureen Martin, a legal scholar at The Heartland Institute, which publishes Infotech & Telecom News, says the February seizure of the Spanish site “and the names of others allegedly linking to other sites through which copyrighted material of U.S. organizations is available, raises a number of tricky, complicated, and largely unresolved international Internet legal issues.”

Martin advises: “The federal government should stay out of this litigation mess.”

Fighting Back

Rojadirecta is a streaming and file-sharing site with a reported million views a day. Owner Igor Seoane has declared he will seek legal action against the United States for seizing his site. “In our opinion the U.S. authorities are completely despising the Spanish justice system and sovereignty,” according to an interview he granted the publication TorrentFreak.

“It’s not clear whether the United States possesses the power to force a foreign owner of a Web site to shut down the site,” said Martin. “So what the government did here—and also did in November 2010 on Cyber Monday—is seize only the domain names owned or administered by companies in the United States, but not the Web sites themselves.”

Martin asserts the exercise is “pointless” because “the sites are usually back up and running under new domain names before the ink is dry on the seizure order. So the U.S. government is wasting its time and resources, ultimately doing nothing to protect the copyrighted material of U.S. organizations such as the National Football League.”

Martin said the most effective U.S. remedy available against alleged copyright infringers is to prosecute them and those linking to them.

“But that’s the problem,” she said. “The alleged infringers are foreign companies which may not be subject to federal court jurisdiction. It’s easier to avoid that jurisdictional argument and just seize the domain name, which is done without pre-seizure notice to the domain name owner. But this is a pyrrhic victory—the sites just resume operating under new names almost instantly.”

‘Far From Cheap Publicity’

Martin describes this federal government involvement as just a form of corporate welfare.

“Anyone who doubts this should look at the timing of the seizures,” she said. “As the government noted in its press release, the seizures occurred just before the Super Bowl. These seizures could be called a cheap publicity stunt, except that they are far from cheap. No wonder this country is trillions of dollars in debt.”

Martin says professional sports organizations such as the National Football League, the National Basketball Association, and the National Hockey League are seeking government intervention on their behalf.

“It’s not like these organizations are helpless and lack legal resources,” she said. “U.S. companies and groups that own copyrights sue alleged infringers all the time under federal copyright laws to stop infringement and recover damages. Given the legal complications raised by involvement here of foreign-owned sites, the copyright owners should bear the expense of litigating these issues, not U.S. taxpayers.”

‘Bad for Speech, Business’

Additionally, Martin says, the seizures represent significant mission creep.

“The primary mission of the Department of Homeland Security is to protect the United States from terrorists, and the primary mission of DHS’s Immigration and Customs Enforcement is to deport illegal aliens, especially criminal ones,” she said. “Those are big enough jobs by themselves and are not being done well. These agencies should stick to their basic missions and work to protect Americans from harm, not to save the NFL, the NBA, and other organizations’ legal fees.”

Both Martin and Jeschke identify such government raids as potentially ruinous to new technologies and innovations. Citing the tremendous opportunities presented by cloud storage, Jeschke says, “If the government decides you might be infringing copyright law in the cloud, you lose it. That could pose a tremendous loss of consumer confidence in this area. So not only is it bad for free speech, it’s also bad for business,” she said.

Bruce Edward Walker ([email protected]) is managing editor of Infotech & Telecom News.