On December 9, the US filed a complaint for civil forfeiture in the Southern District of New York against the seven domain names seized this past summer as part of Operation in Our Sites.

I just came across this and haven’t seen it elsewhere, so I’ve posted a copy of the complaint below.

Pursuant to the Federal Rules of Civil Procedure, the US has also posted notice of the forfeiture action at http://www.forfeiture.gov/ViewNotice.aspx?n=36666&a=0.

[scribd id=46049509 key=key-vvb2xfebd3m55cjwac0]

***update***

The forfeiture.gov link seems to have changed several times. I’ve updated it to a correct link as of 1/4/2011, but if it doesn’t work for you, you can do a “notice search” on forfeiture.gov for “tvshack” to see the notice.

A month ago, as many readers are aware, the US federal government seized a number of domain names for sites engaged in counterfeiting and infringement. The seizures were applauded by many working in the creative industries.

In my previous post on the subject, I responded to criticisms that the seizures violate due process (they don’t) and the First Amendment (they don’t).

A new round of criticisms have sprung up recently when a copy of the seizure warrant for several of the domain names — specifically, those alleged to be facilitating copyright infringement as opposed to counterfeiting — appeared online. You can see the warrant and affidavit here.

The criticisms have been spearheaded primarily by Techdirt, where a series of posts have alleged “technical and legal errors” in the warrant and affidavit.1

Are there errors in the affidavit? If so, do they even matter? The answer is no. The confusion comes from misunderstanding the nature and purpose of warrants and the meaning of “probable cause.”

Probable Cause

A seizure of property for a forfeiture proceeding is very much like an arrest of a person for a criminal trial. The trial or forfeiture proceeding is where guilt or innocence is determined. All that is needed for a seizure or arrest is some basis for starting a trial or forfeiture proceeding against the person or property.

In the US, the Fourth Amendment establishes that basis as “probable cause.” Probable cause does not mean prima facie evidence of guilt — evidence that, as the Supreme Court said over 200 years ago, “would justify condemnation.” 2 Instead, it means only that it is probable that a crime has been committed. Probable cause requires only a “reasonable ground for belief of guilt.”

Most often, probable cause is established by a warrant. The investigating officer writes up an affidavit describing the facts and circumstances that lead him to believe a crime has been committed and submits it to a neutral judge. The judge reviews the warrant and signs off on it if satisfied that probable cause has been established.

Recognizing the distinction between the standard of probable cause and the standard required to prove guilt is important to seeing why the criticisms of this warrant are baseless.

In 1949, the Supreme Court explained the distinction:

Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.

However, if those standards were to be made applicable in determining probable cause for an arrest or for search and seizure, more especially in cases such as this involving moving vehicles used in the commission of crime, few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end. Those standards have seldom been so applied.

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.3

The Court could not be more clear on this last point. It has reiterated many times that probable cause is a preliminary and tentative determination, the affidavits accompanying warrants need not be “ironclad” or airtight, and magistrates should use common sense when deciding whether to issue a warrant, not focus on hypertechnicalities.4

The Court’s reasoning for giving warrants such leeway is based on the realities of law enforcement. As it said in US v. Ventresca (1965):

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.5

Sixteen years earlier, the Court said this common-sense approach that favors warrants but leaves room for reasonable mistakes properly balances the constitutional rights of individuals with the necessities of law enforcement:

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.6

Bottom line: seizures and forfeiture proceedings serve different purposes, like arrests and trials. The warrant is a preliminary instrument whose function is to establish probable cause of a crime. Actually proving guilt or innocence comes later. The realities of enforcing law require a lot of leeway in a warrant: it’s enough for probable cause that the facts and circumstances in the affidavit would lead a reasonable man to conclude that there is a likelihood that a crime was committed.

The Errors?

One of the “errors” alleged by Techdirt is the inclusion of statistics about the effects of online piracy in the affidavit. These statistics were likely added to provide context or background to the investigation for the judge reviewing the warrant. The “error” is that Techdirt disputes the validity of the statistics. But whether or not you agree with the accuracy of the statistics cited in the warrant is irrelevant: probable cause for copyright infringement doesn’t depend on the scope of the harm in the aggregate.

Other “errors” pointed out include the use and definition of certain terms. For example, the classification of Torrent-finder as a “bit torrent website” is disputed because it “hosts no tracker” and “hosts no infringing content.” But the terms are only descriptive, irrelevant to whether or not probable cause of a crime exists. Even if the terminology is technically incorrect, this is the type of “error” that the law doesn’t care about in warrants.

I’m not even sure the terminology used here is even wrong in the first place. BitTorrent is a protocol, so there’s an accepted, technical definition for that — but is there an accepted, technical definition for a “bit torrent website”? Wikipedia lists sites similar to Torrent-finder at Comparison of BitTorrent sites: sites that search through multiple torrent search engines but do not host trackers or infringing content themselves.

Some of the other “errors” found in the seizure warrant include what amount to possible defenses against criminal copyright infringement — for example, the operator of one of the sites whose domain name was seized claims that several of the songs available to download that had been identified in the warrant were authorized to be shared for promotional purposes. If true, this would of course mean that there was no infringement of those specific songs. But that’s an issue for the forfeiture proceeding, not the probable cause determination.

The Supreme Court has “flatly rejected the idea that the police have a standing obligation to investigate potential defenses before finding probable cause.”7 Possible defenses and claims of innocence are issues for the judge and jury, not law enforcement officials. Yes, this means that sometimes property is seized or people are arrested that later are found not guilty. That is the purpose of the trial — to determine innocent or guilt. But “the Constitution does not guarantee that only the guilty will be arrested” and “due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.”8

Conclusion

An actual legal challenge to this warrant would not likely be successful, but I doubt that is the goal of those pointing out the “errors” they’ve found. It’s not as though if some of the technical definitions were worded differently, or alternate statistics were used, critics would have no problem with the seizures.

Their problem is disagreement with fundamental copyright laws, so any attempts to enforce those laws are attacked any way they can. Critics seem to want an exception from these rules of probable cause and procedure — rules that apply to pretty much every other law, both federal and state — for piracy. A “balanced” copyright law, it seems, is one that places all the burden on the copyright holder — from creating and investing in new works to policing and enforcing the rights in those works — while requiring that “every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting” a torrent search engine.9

Footnotes

  1. See Homeland Security Presents ‘Evidence’ for Domain Seizures; Proves it Knows Little About the Internet — Or the Law; Full Homeland Security Affidavit to Seize Domains Riddled With Technical and Legal Errors; More and Bigger Mistakes Discovered in Homeland Security’s Domain Seizures. []
  2. Locke v. United States, 11 US 339, 348 (1813). []
  3. Brinegar v. United States, 338 US 160, 174-76 (1949). []
  4. See Brinegar; Spinelli v. US, 393 US 410, 419 (1969); Beck v. Ohio, 379 U. S. 89, 96 (1964); McCray v. Illinois, 386 U. S. 300, 311 (1967); United States v. Ventresca, 380 U. S. 102, 108 (1965); Barber v. Page, 390 U.S. 719, 725(1968). []
  5. 380 US 102, 108 (1965). []
  6. Brinegar v. United States, 338 US 160, 176 (1949). []
  7. Acosta v. Ames, 386 F. 3d 5, 11 (1st Circuit, 2004), citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979). []
  8. Baker v. McCollan
    at 145. []
  9. Quote taken from Baker v. McCollan, where it was used in the context of describing what due process does not require. []

As scholars, interest groups, and bloggers criticize copyright, many turn to the first amendment to add heft to their arguments. The nature and scope of copyright law is not just bad, they argue, it is unconstitutional.

The “free-speech critique of copyright”1 seems appealing, at first glance. For starters, it sounds a lot better to say you’re defending the Constitution rather than complaining about having to pay for music and movies.

But this criticism of copyright law suffers in a number of respects. In Artistic Expression, the First Amendment, and Copyright, I showed how the free speech critique of copyright fails to take into consideration the free speech rights of creators. In this sense, the free speech critique isn’t about upholding the values of the first amendment where they’ve been previously ignored — it’s about playing favorites with first amendment values: the free speech rights of those who make creative or even consumptive uses of existing expressive works should be protected at the expense of the free speech rights of those who actually created the works in the first place.

When we discuss the relationship between the first amendment and copyright, it’s important to recognize that creators have free speech interests too. Earlier this month, I took a look at how copyright law helps protect the free speech rights of creators. Copyright is the “engine of free expression” that provides an incentive to invest in the creation and dissemination of ideas and expression. Piracy — the unauthorized distribution of near-exact copies of a work — creates a chilling effect on the speech of creators.

But copyright law does more than just promoting the creation and dissemination of new expression. It also helps to protect the free speech rights of creators after a work has been created.

David McGowan explores this point in Some Realism About the Free Speech Critique of Copyright.

Audiences understand works in light of a cluster of facts and circumstances we call context. Contexts change, so meanings can change. People may understand a work in different ways at different times. One way a meaning can change is for one person to take a work and place it in a new context of their own creation, trading on its meaning and thereby imbuing the work with their own perceptions.

[…]

The changeability of meaning is fundamental to the relationship between copyright and speech. Take whatever collective description of free-speech activity you prefer: the development of common culture, democratic civil society, or what have you. Call it “speech.” Because meanings can change, an author’s contribution to speech may end when a work is published, but it does not have to. If the law gives her the power, an author can keep on trying to manage the meaning of a work over time.

This point is not lost on the free speech critics of copyright. In fact, for some, it forms the basis for their argument.

For example, in Parchment, Pixels, and Personhood: User Rights and the IP (Identity Politics) of IP (Intellectual Property), John Tehranian classifies copyright infringement as something akin to a fashion statement. Just as some people choose to express themselves through the clothes they buy and how they wear them, some people choose to express themselves through the music they listen to and through remixing or mashing up existing works.

What’s unclear is why copyright law stands in the way of this expression, and what’s even less clear is how the first amendment requires copyright law to get out of the way more than it does now.

It doesn’t. The free speech criticism of copyright fails on this point because it neglects the creator’s free speech interests in managing the meaning of a work. As McGowan explains:

[W]hen one speaker wants to use another’s work, the relevant legal rules embody a choice between two speech interests. Because meanings can change, and because authors may affect that change, this choice is not a choice between an author who has had his say and one who wants to speak. It is between two people who would like to try to make people see a certain work a certain way.

So there is good news and bad news. The good news is that whichever of these rules, or any combination of them, the law adopts, a speech interest will be advanced. The bad news is that whichever rule it adopts, a speech interest will be harmed. Whether you consider it good news or bad, this fact means that no notion of speech, and no theory of the freedom of speech, provides a premise for preferring one rule over the other.

Now we can see what the Supreme Court means when it says “copyright law has built-in First Amendment accommodations.”2 The copyright incentive spurs the creation and dissemination of new ideas and expression, while the distinction between ideas and expression (copyright protects only expression, not ideas) means users and downstream creators can use and build on these new ideas. Fair use allows others to use even the expression in existing works without permission in certain situations — situations such as criticism3 and parody,4 where the use is valuable, but it is unlikely for a copyright owner to grant permission.

But any free speech critique of copyright that ignores or neglects the free speech rights of creators does a disservice to the values enshrined in the first amendment. Creators should not be asked to sacrifice their speech rights just because nonconstitutional arguments against copyright have faltered.

Footnotes

  1. A phrase coined by law professor David McGowan in Some Realism About the Free Speech Critique of Copyright. []
  2. Eldred v. Ashcroft, 537 US 186, 219 (2003). []
  3. 17 USC § 107. []
  4. Campbell v. Acuff-Rose, 510 US 569 (1994. []

A common criticism of copyright law or its enforcement is that it doesn’t adequately protect first amendment rights. Activist groups like the EFF, Public Knowledge, and the Center for Democracy & Technology are  quick to raise the issue at the first sign of any proposal or effort to protect copyright rights. I’ve previously addressed such arguments as they related specifically to COICA and domain name seizures.

The “free speech critique” of copyright can essentially be summed up as this: “Copyright law restricts speech: it restricts you from writing, painting, publicly performing, or otherwise communicating what you please.”1 The past few decades have seen a ton of academic scholarship devoted to this critique.2 By and large, the consensus is that the restriction exists, and something needs to be done about it.

What’s missing from these arguments, however, is any discussion about the free speech rights of copyright owners.3 Today I want to take a closer look at this discussion, one I broached before in Artistic Expression, the First Amendment, and Copyright.

Free Speech Rights of Copyright Owners

“Once it is decided … that the First Amendment operates in the copyright arena, it should be realized that it is a two-way street, for the copyright owner also has First Amendment rights.”4

So says William Patry, one of the leading experts in the US on copyright law. He recognizes what many free speech critics of copyright don’t: free speech interests lay on both sides of the copyright owner-copyright user divide. And rather than standing in contradiction to each other, the first amendment and copyright law work in tandem to protect the free speech interests of both sides.

While this point is lost to free speech critics, US courts recognize it — first amendment defenses to copyright infringement actions are consistently rejected in lawsuits. “It should not be forgotten that the Framers intended copyright itself to be the engine of free expression,” wrote the Supreme Court in Harper & Row v. Nation Enterprises. Copyright and the first amendment co-exist to allow new ideas to be created and disseminated. Copyright provides an incentive to encourage the spread of new expression, while the first amendment removes roadblocks in the way of dissemination. What’s more, first amendment safeguards are built into copyright law: protection only extends to expression, not the underlying ideas; fair use allows criticism, commentary, and transformative uses without the permission of the copyright owner; and statutory exceptions exist for certain educational, library, and other “public” uses without permission to enhance access and dissemination of these works.

Copyright critics who raise first amendment concerns completely overlook the free speech rights of creators. One would think that the free speech rights of those who create original expression should, at the very least, be equal to the free speech rights of those who build upon existing works. But under the prevailing view, it seems that the free speech rights of creators of original expression are in fact subservient to subsequent users of that expression.

Even if we accept the notion that some people’s first amendment rights are more important than others, the copyright critic’s ranking doesn’t make sense. Why should we value the free speech rights of those who add new expression to the marketplace of ideas less than the free speech rights of those who build upon or reproduce that new expression?

As David McGowan writes in Some Realism About the Free Speech Critique of Copyright,

The free-speech critique wants courts to favor one type of speaker over another. It plays favorites. It therefore is at odds with any conception of free speech that prohibits judges from playing favorites among speakers, as both current doctrine and the most cogent speech theories do.

The Chilling Effect of Online Piracy

First Amendment doctrine cautions against laws that place a “chilling effect” on speech. Laws aimed at unprotected categories of speech (like libel or child pornography) that are not narrowly tailored may cause self-censorship or stifling of protected speech out of a fear of risking penalties or liability.

In the same vein, copyright infringement has a stifling effect on the creation and dissemination of new creation. Ineffective enforcement against infringement or undue burdens on copyright owner’s abilities to protect their rights reduces the incentive to continue to create new expression.

Essentially, copyright infringement creates a “chilling effect” on the free expression rights of creators.

This chilling effect is very real, as creators have attested to. Indie film producer Ellen Seidler recognized it while she was endeavoring to protect her rights. When submitting DMCA notices to Google to remove links to unauthorized version of her film, she was told copies of her notices would be posted to the Chilling Effects website. “The implication therein is that by asserting my rights and sending a DMCA to request the removal of infringing content I am somehow ‘chilling’ a pirate’s right to ‘free speech,’ she says. “Really?  In my view the only thing being ‘chilled’ is our right to make a living.”

Comic artist Colleen Doran describes first-hand how the chilling effect of online piracy affects her:

I spent the last two years working on a graphic novel called Gone to Amerikay, written by Derek McCulloch for DC Comics/Vertigo. It will have taken me 3,000 hours to draw it and months of research. Others have contributed long hours, hard work and creativity to this process. But due to shrinking financing caused by falling sales in the division, these people are no longer employed.

The minute this book is available, someone will take one copy and within 24 hours, that book will be available for free to anyone around the world who wants to read it. 3,000 hours of my life down the rabbit hole, with the frightening possibility that without a solid return on this investment, there will be no more major investments in future work.

Freelance photographer Seth Resnick adds his perspective:

Copyright is the very basis of my existence and the existence of every freelance photographer in the country. As a freelancer, I exist only by the value of the intellectual property I am able to create. I have to control and license that property. If I don’t control the licensing I am unable to place any value on my art form of photography. Without the ability to license my intellectual property I simply can’t stay in the marketplace. A photographer or any artist who can’t stay in the market, can’t produce work which is a very part of our American culture.

Disputing the Chilling Effect of Online Piracy

Free speech critics may dismiss concerns about the “chilling effect” online piracy has on copyright holders as lacking in evidence or unworthy of attention. Yet they are quick to warn about the dangers to free speech that removing, say, a video of a dancing baby from one of numerous video sharing sites has. In the end, this argument is simply a choice between two speech interests — one that says some people’s rights are more important than others. And chilling effects are, by their definition, difficult to measure. But just as it’s not alright to say “censhorship is ok as long as no one actually ends up in jail,” it’s not alright to say “piracy is ok as long as no one actually files for bankruptcy.”

Concerns might also be dismissed by saying creators aren’t really concerned about their right to speak, they just want more money. But this type of thinking ignores the fact that copyright incentives benefit everybody. Society benefits from the creation of new works, authors and artists are encouraged to continue creating new works. All piracy does is remove the benefit from those creating the new works. As Ellen Seidler notes, with piracy, “Everyone is making money, it seems, except those who own the rights”.

Finally, it might be argued that the chilling effect of copyright infringement is no longer an issue since digital technology has somehow made copyright incentives irrelevant. The happy thoughts that everyone else benefits from the content you create will make up for the incentive copyright provides; merchandising and personal appearances are enough to recoup the expenses of devoting time to creating that content. I realize this argument warrants enough attention for an entirely separate article, but for purposes of this article, it suffices to say that the argument doesn’t justify infringing on free speech rights, and it flies in the face of reality. How many people are flocking to see news photographers in person? How many t-shirts can authors of educational books sell? The quality of the creative work doesn’t matter as much as the marketing skills of the creator, or how good she looks on camera. This same idea has certainly worked well in politics, right?

Parting Thoughts

Recognizing the “chilling effect” that infringement has on the free expression rights of copyright owners is just one strand in unraveling the free speech critique of copyright. In the future, I hope to look at some of the other issues involved in the critique — why courts have categorically denied first amendment defenses in cases of infringement, and why this approach makes sense, for example.

However, I don’t mean to imply that freedom of expression is somehow not important. The first amendment reflects the importance of this freedom in our society. It is precisely because of this importance that there is a responsibility to take everyone’s freedom of expression rights into consideration. Favoring one group’s free speech interests over another’s runs counter to the values enshrined in the first amendment and the copyright clause.

Footnotes

  1. Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). []
  2. Just a few of the articles: Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970); Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180 (1970); Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43 (1971); Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979); L. Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987); Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review665 (1992); Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996); Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998); Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998); Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. Law Review 354 (1999); Alan E. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001); Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002); Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). []
  3. One exception is David McGowan, Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005). []
  4. William Patry, The Fair Use Privilege in Copyright Law, 469-70 (1985). []

There’s this idea that online piracy is somehow “different” from real-world or traditional piracy. It’s like nothing the world has ever seen before — a paradigm shift that fundamentally changes how content is created and consumed and calls into question the very notion of copyright law.

Online piracy is defended by many and even celebrated by some. Terms like “innovation” are applied frequently to those who discover faster and easier ways to ensure everyone benefits from content except those who spend the time and money creating it. In November, for example, music blog Hypebot asked, “Does litigation drive innovation in music piracy?

On a sidenote, it’s important to distinguish between real innovation and “false innovation.” An airline might be able to cut costs by foregoing maintenance, but we wouldn’t call that move “innovation.”

It’s not hard to find examples of this sort of revelry in “piracy 2.0.”

Last month, a group released a “Pirate Edition” of the file-sharing program Limewire after a court injunction shut down the original version of the software. Those responsible celebrated both the difficulty the content industries have in enforcing their copyrights and the ease in which pirates can recover from any setbacks.

“A horde of piratical monkeys climbed aboard the abandoned ship, mended its sails, polished its cannons and released it FREE to the community to help keep the Gnutella network alive,” say the coders.

“Speaking for myself, the motivation is to make RIAA lawyers cry into their breakfast cereal. I hope the other monkeys have nobler intentions,” says the project leader.

The idea that piracy is a noble cause now that it has moved online, or that this new generation of pirates are more clever than the bootleggers of the past for figuring out ways to evade the law and take all the benefits of the copyright incentive for themselves is silly.

As long as there has been copyright, there has been copyright infringement. And though dissemination of creative works has moved from print to digital, pirates use the same techniques to stay one step ahead of the law.

Nothing illustrates this better than the following selection from Edward Cutler’s 1905 book, A Manual of Musical Copyright Law. (I previously posted a different section in Enemies of Monopoly of Brain-product). Cutler describes a particular method of piracy seen in England over a century ago:

The piracy in recent years of copyright musical compositions and the musical anarchy which, unfortunately, still reigns in this respect, form a disgraceful epoch in the history of English jurisprudence.

Abuses have arisen which would be impossible in any other civilised state, and which hold Great Britain up to derision throughout the civilised world.

In the closing years of the last century some unscrupulous person invented a scheme for robbing the proprietors of copyright (whether composer or publisher) of their just gains.

Wretchedly-got-up versions of songs, carefully chosen from among those which have gained popular favour, are secretly printed and secretly stored in cellars. A few copies are handed out to irresponsible hawkers and are offered for sale by them at a penny or twopence a copy in populous thoroughfares. If interfered with, the dozen or so copies which each hawker has with him are given up. The loss to the thief is inconsiderable. Another hawker in the next street renews the stock and the same game is played out daily.

Another form of the fraud is the house-to-house distribution of lists of pieces of music, from which the householder can choose, and the supply of the pieces chosen at low prices. No printers name or address is found on any of the pieces sold. The people who are responsible for the transaction remain in the background, and in this way many thousands of copies of any popularised pieces of music are got rid of and the legitimate sale of the publication almost, if not entirely, ceases. There appears to be an idea in many people’s minds that these pirates deserve some sort of questionable credit for their ingenious evasion of the law, thereby defeating a vicious monopoly. It is time to undeceive them in this respect. Audacious lying; concealment of addresses, and scuttling away are the laudable means by which these street buccaneers carry out their ends. Ingenious evasion or device there is none, and their boldness would not have succeeded but for the supineness of the Government, the unreasoning sympathy which appears to exist in the minds of a few short-sighted politicians, and the dishonesty of purchasers who knowingly buy the spurious articles. The effect of this wholesale robbery is disastrous.

The publishers (leaving out of the question the most wealthy and old established houses, whose capital enables them to stand the brunt of the competition on unequal terms) are many of them hardworking tradesmen who have invested their small capital in getting together a business, and in purchasing the copyright of one or two songs which offer a probability of success, and they are ruined wholesale. They pay singers to bring their songs before the public, and advertise very largely, only to find that they have been spending their money for the benefit of a pack of thieves, who filch the whole of their profits and entirely stop their sales. Unfortunately the votes of these deserving, but politically insignificant, sufferers can be treated as a “quantité negligeable.”

The parallels between what Cutler is describing and the recent targeting of the domain names of infringing websites are particular acute. Under the DMCA, a website dedicated to infringing activities can continue to operate while each individual copyright owner who finds her work on the site is limited to requesting removal file by file or link by link. The loss to the site is indeed “inconsiderable.”

Executive efforts like Operation in Our Sites and legislative efforts like COICA are more effective at disrupting these types of sites. Obviously, they won’t put an end to piracy: just as people were infringing during Cutler’s time, they will find ways to infringe 100 years from now. And absolutely the content industries must continue to adapt to technological changes and rely primarily on the quality of their work and the attractiveness and convenience of the services they offer.

But, as with every industry, the law plays a necessary role. It’s silly to think the law shouldn’t evolve along with technological changes in order to remain effective against widespread, consumptive infringement.

Special bonus: the next section of Cutler’s book is eerily reminiscent of the events surrounding COICA:

The copyright bill discussed before Lord Monkswell’s Committee contained a clause inserted by the writer conferring upon the owner of copyright power to seize pirated copies of his works. It also gave him power, without applying to any Court, to authorise a police constable to seize the pirated copies which might be taken before a Court of summary jurisdiction and destroyed.

The writer’s clause also contained words enabling the Court to act ex parte; (that is, on the evidence of the complainant alone, without the necessity of summoning the alleged infringer); to make an order for destruction in the absence of the latter. The clause also contained a Provision inflicting a penalty for every piratical sale. Had these two last provisions been allowed to remain, the whole mischief caused by the street pirates would have been remedied; but the words inflicting penalties and giving power to make ex parte orders were struck out, and the Bill eventually became law in a form which is useless. The Statute in question is printed verbatim in the appendix. In consequence of the utter failure of this admirable effort of the Legislature, a Bill was prepared and put into the hands of a private member containing clauses necessary to remedy the abuses. The measure was stifled by the efforts of a member for a Scotch district, who utilised the technicalities of Parliamentary procedure to throw the matter over another session. After endless efforts on the part of those who wished to see justice done, a Parliamentary Committee sat upon the matter, the Scotch member being nominated as one of the members; and again the real merits of the case were stifled, both in the proceedings before the Committee and before the House of Commons. In the latter place the procedure which stops short of the application of closure to a Private Members’ Bill enabled the matter in question to be thrown over to yet another session.

On November 29, the US Immigrations and Customs Enforcement agency executed seizure warrants on over 80 domain names for sites engaged in counterfeiting and online piracy. This round of seizures, dubbed “Operation In Our Sites v. 2.0″, is part of an ongoing investigation by ICE and follows a similar round of seizures which took place this past summer.

Many have noted similarities between Operation In Our Sites and the pending Combating Online Infringement and Counterfeits Act (COICA), which would create enhanced civil forfeiture mechanisms against websites dedicated to infringing activities. Both the Operation and COICA target the domain name of these websites; both result in blocking the domain name from resolving to the website.

And, like COICA, critics of Operation In Our Sites have raised concerns that these domain name seizures lack due process and violate the First Amendment. I previously addressed these two issues as they relate to COICA; today, I want to take a look at them in the context of these domain name seizures.

Seizure vs. Forfeiture

The first step in understanding what is going on here is making a distinction between seizure and forfeiture. It’s easy to get the two confused, but they are separate concepts, and the government has to play by two different (but sometimes overlapping) sets of rules to stay within constitutional bounds.

Seizure is the act of taking custody of property. Most of us are probably most familiar with seizure of property that is evidence of a crime: when police find the murder weapon during a search, they can seize it — take temporary possession of it — for further examination and for use at trial. But property is also typically seized prior to forfeiture proceedings.1 A court only has authority of property within its territorial jurisdiction, and it can only assert that authority when the property has been taken into its custody.2

The US Constitution lays out specifically what is needed for a seizure to be lawful. The Fourth Amendment states that “unreasonable” seizures are prohibited, and property may only be seized when accompanied by a warrant, issued “upon probable cause” that describes with particularity the “things to be seized.”

Forfeiture is the “involuntary relinquishment of money or property without compensation as a consequence of a breach or nonperformance of some legal obligation or the commission of a crime.”3 Property may be forfeited as part of a sentence for a criminal conviction, or the government may seek forfeiture in and of itself through a civil in rem proceeding against the property. Civil forfeiture is limited to those types or classes of property set by statute. In civil forfeiture cases, the government has the burden of proving by a preponderance of the evidence that property was used in or derived from prohibited activities.

In short: property is seized to commence a civil forfeiture proceeding, and it is forfeited if it was used in the commission of a crime. This principle has been followed for centuries: British politician and lawyer John Sadler wrote in 1649, “No forfeiture before conviction; no seizure before indictment.”4

The US government may use civil forfeiture to enforce copyright laws against:

(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 231823192319A2319B, or 2320, or chapter 90section 231823192319A2319B, or 2320, or chapter 90, of this title.

(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).

(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).5

So, contrary to some descriptions of COICA, the authority to initiate forfeiture proceedings against domain names of websites involved in the commission of copyright infringement already exists. COICA merely enhances these forfeiture proceedings (for example, by adding requirements for advertising and financial transaction providers to take reasonable measures to block their services from forfeited domain names). However, whether the government pursues civil forfeiture against domain names under COICA, should it pass, or under existing law, the first step in that process would still involve what occurred on November 29th: the seizure of those domain names.

Seizure and Due Process

Most of us generally don’t question the authority of the government to seize property that is evidence in a criminal trial. If police have a warrant to look for a murder weapon, and they find it, they can bag it up and remove it from the owner’s possession.

But as mentioned above, property may also be seized pursuant to a warrant to be forfeited in and of itself. While some may find this practice troubling — especially if the government is seen as too aggressive in seizing property — the constitutional requirements for this type of seizure are largely the same as seizing property for evidence.

When it comes to the practice of seizing domain names, the question is: should the same rules that govern the seizure of ordinary property apply, or do domain names present special circumstances that require stricter rules of due process for their owners?

In making the claim that domain names present special circumstances, critics of the seizures seem to want to have their cake and eat it too. They say these seizures are unconstitutional — they should be subject to higher standards of due process because owners of domain names are being deprived of something more than owners of all other types of property subject to seizure. But at the same time, they say these seizures are ineffective because the owners aren’t being deprived of anything — they still have their content and servers, their sites can still be accessed by IP address, and in many cases, the owners have registered new domain names for their sites within hours of the seizures.

Let’s see whether the case for treating domain names differently than ordinary property hold up.

The Fifth Amendment states that “No person shall … be deprived of life, liberty, or property, without due process of law.” Generally, “due process” requires notice and a hearing. When it comes to seizure, the question boils down to whether the notice and hearing must occur before the government seizes property, or whether the hearing can occur after.

For most of history, the Supreme Court has held that notice and hearing after property is seized is sufficent; the Fourth Amendment requirements of probable cause and specificity for seizures satisfies due process. However, the Court has carved out exceptions to this principle. In 1993, in a forfeiture case involving real estate, the Court stated that the Fourth Amendment “does not provide the sole measure of constitutional protection that must be afforded property owners in forfeiture proceedings” — forfeiture proceedings must also comply with “well-settled jurisprudence under the Due Process Clause.” US v. James Daniel Good Real Property held that the government must provide notice and hearing before seizing real estate it wishes to forfeit.

The reasons for this exception were provided by the Court. “The practice of ex parte seizure … creates an unacceptable risk of error.” The government’s interest in this practice must be balanced with this risk. Primarily, the Court noted that since real estate can’t move, courts can establish jurisdiction over it without seizure. Thus, there is no pressing need to delay notice and hearing until after real estate is seized.

Notably, three justices dissented from this holding, noting that there was no basis in existing case law for the Court to look beyond the Fourth Amendment in seizure cases and no logical reason to distinguish real estate from personal property:

“Our historical treatment of civil forfeiture procedures underscores the notion that the Fourth Amendment specifically governs the process afforded in the civil forfeiture context, and it is too late in the day to question its exclusive application. As we decided in Calero-Toledo v.Pearson Yacht Leasing Co., 416 U. S. 663 (1974), there is no need to look beyond the Fourth Amendment in civil forfeiture proceedings involving the Government because ex parte seizures are `too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced.'”

Nevertheless, when it comes to real estate, due process typically requires a hearing before the property is seized.

Domain names are not real estate, and the reasons in James Daniel Good Real Property for requiring a pre-seizure hearing are not applicable to the seizure of domain names. The “risk of error” involved in seizing domain names is no higher than those involved in the seizure of personal property: the content and servers are still available to the owner, the site can still be accessed through the IP address, and it is relatively easy for the owner to acquire a new domain name — something many of those affected did within hours of having their domains seized.

Also, like personal property, domain names can be “moved” or “destroyed” as those terms are understood in the jurisdictional context. The situs of domain names is the location of the domain name registrar where the domain name is registered. As mentioned above, it is relatively easy for a website owner to register a new name overseas, removing the domain name from the court’s territorial jurisdiction.

Thus, the forfeiture of domain names present the same considerations that the Supreme Court has held justify postponing notice and hearing until after seizure in Calero-Toledo. The seizure permits the US “to assert in rem jurisdiction over the property in order to conduct forfeiture proceedings, thereby fostering the public interest in preventing continued illicit use of the property and in enforcing criminal sanctions”, domain names “could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given”, and “seizure is not initiated by self-interested private parties”, but by federal officials.

Seizure and the First Amendment

The argument is also made that these domain name seizures violate the First Amendment. Websites contain speech; ex parte seizure of websites, before a judicial determination that the content is not protected by the First Amendment (as is the case with infringing content) may be considered a prior restraint on speech. As we’ll see, the seizure of these domain names do not run afoul of First Amendment protections for many of the same reasons they do not run afoul of due process protections.

The Supreme Court has addressed the implications of the First Amendment in seizures most often under laws prohibiting obscenity. Obscenity is not protected by the First Amendment. Seizure of obscene materials, whether to use as evidence in a criminal trial or to initiate forfeiture proceedings, requires a close look by courts because of the risk that nonobscene, protected speech might end up being blocked.

In Quantity of Copies of Books v. Kansas, the Court reiterated its warning that “if seizure of books precedes an adversary determination of their obscenity, there is danger of abridgment of the right of the public in a free society to unobstructed circulation of nonobscene books.” This danger does not foreclose all seizures concerning speech, however. It merely means that the law requires certain procedural safeguards to protect against the abridgment of  speech rights.

First, as the Court stated in Stanford v. Texas, “the constitutional requirement that warrants must particularly describe the “things to be seized” is to be accorded the most scrupulous exactitude when the “things” are books, and the basis for their seizure is the ideas which they contain.” There is no question that the government has met this requirement; the seizures were made pursuant to valid, specific warrants issued by a neutral, impartial judge.

Second, “because only a judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint.”6 This does not mean that a judicial determination must occur before seizure. The Court in Heller v. New York said that it “has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.” Rather, “a judicial determination need only occur ‘promptly so that administrative delay does not in itself become a form of censorship.'” In effect, the Court recognizes the danger that too long of a temporary restraint on speech-related items can have the effect of a final restraint.

The Court, however, upheld the seizure in Heller, and I think the reasoning is applicable to the seizure of these domain names:

In this case, of course, the film was not subjected to any form of “final restraint,” in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself “become a form of censorship,” even making the doubtful assumption that no other copies of the film existed. A judicial determination of obscenity, following a fully adversary trial, occurred within 48 days of the temporary seizure. Petitioner made no pretrial motions seeking return of the film or challenging its seizure, nor did he request expedited judicial consideration of the obscenity issue, so it is entirely possible that a prompt judicial determination of the obscenity issue in an adversary proceeding could have been obtained if petitioner had desired. Although we have refrained from establishing rigid, specific time deadlines in proceedings involving seizure of allegedly obscene material, we have definitely excluded from any consideration of “promptness” those delays caused by the choice of the defendant. In this case, the barrier to a prompt judicial determination of the obscenity issue in an adversary proceeding was not the State, but petitioner’s decision to waive pretrial motions and reserve the obscenity issue for trial.

The seizure of domain names is even less like a form of final restraint than the seizure of the film in Heller. Neither any content or servers containing the content were temporarily detained. The purpose of seizing these domain names is to establish and preserve in rem jurisdiction for forfeiture proceedings. The seizure doesn’t preclude access to the web sites or amount to a “form of censorship” — as stated above, one can access the site by IP address, and it is relatively easy for a site owner to set up a new domain name. Finally, domain name owners have full opportunity to challenge the seizures themselves through pretrial motions or a prompt judicial determination at a forfeiture proceeding.

Conclusion

The seizure of these 82 domain names satisfy both due process and the First Amendment. Criticism of this strategy on constitutional grounds is thus shaky. Critics may still question the rightness of the seizures, but as the Supreme Court pointed out over a century ago, “If the laws here in question involved any wrong or unnecessary harshness, it was for Congress, or the people who make congresses, to see that the evil was corrected. The remedy does not lie with the judicial branch of the government.”7

As far as their effectiveness or necessity, I’m inclined to agree with Patrick Ross’s take:

The U.S. government has an obligation to ensure that U.S. copyright law is enforced in all markets, physical and online. Operation In Our Sites is but one example of many of how the Obama Administration recognizes the critical role copyright industries play in our economy, and individual artists and creators play in our economy and our culture.

I’m sure there will be some out there who criticize the seizure of these domains, just as there are those who criticize a bipartisan effort by lawmakers to facilitate the disruption of these for-profit online theft centers. Their criticism will begin with an assertion of the importance of copyright protection, then immediately be followed by a big “but.” (Any image that comes to mind from those last two words is wholly on you.)

Instead of constantly saying what they don’t like, maybe those critics could say that copyright enforcement is important, and follow with an “and,” i.e., “and we think the federal government should do x, y, and z to ensure successful enforcement.” If you don’t hear that “and” it’s probably because they weren’t sincere in the part before the “but.”

Footnotes

  1. Most property, that is, as we’ll see later. []
  2. Dobbins’s Distillery v. United States, 96 US 395 (1878). []
  3. West’s Encyclopedia of American Law, edition 2. []
  4. John Sadler, Rights of the Kingdom, pg. 281. []
  5. 18 US Code § 2323(a)(1). []
  6. Heller v. New York, 413 US 483, 489 (1973). []
  7. Springer v. United States, 102 US 586, 594 (1881). []