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.

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***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.

5 Comments

  1. Clearly, the complaint advances the argument sub silentio that a domain name is “property” for purposes of Title 18. I have to wonder if this argument will find a receptive audience within the federal courts.

    • I would think so. Courts have ordered the forfeiture of domain names as part of sentences for criminal copyright infringement in the past (example). The property subject to forfeiture as part of a criminal sentence is the same as property subject to civil (in rem) forfeiture (18 USC 2323(b)).

      • I think so as well, but there is nevertheless a lingering doubt I harbor that a domain name truly squares up with conventional notions of “property”. From my perspective it seems more akin to a “telephone number”, with seizure being little more than converting a listed number into one that is unlisted.

        Mind you, I am not troubled that a domain name is taken away when that domain name is being utilized as a means to violate the law. My interest resides in working through various legal theories that can be relied upon to deny the means to the wrongdoer. In other words, is a property-based theory truly the most appropriate?

        • Perhaps the most thorough analysis of whether domain names are property comes from the 9th Circuit in Kremen v. Cohen:

          “Property is a broad concept that includes “every intangible benefit and prerogative susceptible of possession or disposition.” We apply a three-part test to determine whether a property right exists: “First, there must be an interest capable of precise definition; second, it must be capable of exclusive possession or control; and third, the putative owner must have established a legitimate claim to exclusivity.” Domain names satisfy each criterion. Like a share of corporate stock or a plot of land, a domain name is a well-defined interest. Someone who registers a domain name decides where on the Internet those who invoke that particular name—whether by typing it into their web browsers, by following a hyperlink, or by other means—are sent. Ownership is exclusive in that the registrant alone makes that decision. Moreover, like other forms of property, domain names are valued, bought and sold, often for millions of dollars, and they are now even subject to in rem jurisdiction, see 15 U.S.C. § 1125(d)(2).

          Thoughts?

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  6. JJ, do you even know what free-market competition is? “It’s ridiculous to assume liberals don’t believe in free market competition. We believe in free market competition with a level playing field for everyone.” That’s like saying the Lakers and the Cavaliers are too good, so they have to give Lebron and Kobe to the Nets and the T’wolves, so that everyone can “compete” on a “level playing field.”