Copyhype

Is Google in danger of being seized by ICE for facilitating copyright infringement?

It seems quite a few people have asked that question in the wake of ICE’s Operation in Our Sites, which seized the domain names of pirate sites last July, November, and, most recently, a few weeks ago.

John Moe, of American Public Media, asked Homeland Security Investigation Special Agent James Hayes that very question and posted the audio online.

The idea seems to be that most of the domains seized point to sites that link to infringing material rather than hosting it themselves. Google links to infringing material. Hence, Google is at risk for forfeiture.

In Super Bowl Seizures, I mentioned that facilitating property needs a substantial connection to the underlying crime to be subject to forfeiture under federal law but glossed over what that means. Today, I want to look at this standard in more detail and see what it means for Google.

The Forfeiture Standard

Federal law provides for the forfeiture of “any property used, or intended to be used, in any manner or part to commit or facilitate the commission of” copyright infringement. ¹18 USC § 2323(a). As noted in my previous post, this language is very broad: facilitation means the property need only make the commission of the crime “less difficult or ‘more or less free from hindrance'”, and the statute covers any property used in any manner or part. One could theoretically trace a “for want of a nail” line of all sorts of property that make a crime less difficult to commit.

However, courts have generally recognized that the connection between property and crime must be more than de minimis. In the language most often used by courts, the connection must, at a minimum, be more than “incidental” or “fortuitous.”

This broad language has been narrowed by the passing of the Civil Asset Forfeiture Reform Act of 2000, which added to the law language that says (emphasis added) “if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.” ²18 USC § 983(c)(3). Congress intended the “substantial connection” language to require that the use of property to facilitate a crime is “significantly greater” than incidental or fortuitous. ³146 Congressional Record 5231 (2000).

On the other side of the spectrum, the forfeiture statute does not require that the facilitation of a prohibited activity is the principle use of the property. ⁴Bennis v. Michigan, 516 US 442, 450 (1996). Nor does it require that the property is indispensable to the commission of a prohibited activity. ⁵See, eg, US v. One Parcel of Real Estate Known as 916 Douglas Ave., Elgin, Ill., 903 F.2d 490, 493 (7th Cir. 1990).

The first big question is where to draw the line between substantial and insubstantial connections.

Incidental and Fortuitous versus Deliberate and Planned

The terms “incidental” and “fortuitous” are often contrasted with the terms “deliberate” and “planned” in forfeiture cases. ⁶Most often in Eighth Amendment challenges, though courts have used such terminology outside that context, e.g., US v. 475 Cottage Drive, 433 F.Supp.2d 647, 656 (MD NC 2006). A closer look at the meaning of these words may aid in understanding what kinds of property may be forfeited. From Merriam-Webster:

• incidental – (1) being likely to ensue as a chance or minor consequence; (2) occurring merely by chance or without intention or calculation.
• fortuitous – (1) occurring by chance; (2) coming or happening by a lucky chance.
• deliberate – (1) characterized by or resulting from careful and thorough consideration; (2) characterized by awareness of the consequences; (3) slow, unhurried, and steady as though allowing time for decision on each individual action involved.
• planned – (1) arranged the parts of; (2) devised or projected the realization or achievement of; (3) had in mind.

The Merriam-Webster’s Dictionary of Synonyms adds further shading to the meanings of these words. In its entry for “accidental, casual, fortuitous, contingent, incidental, adventitious,” the book notes:

The last five of these words are synonyms of accidental but not always of one another. Accidental denotes simply either happening by chance or not of the real or essential nature of a thing. Casual, fortuitous, and contingent come into comparison with accidental in the first of these senses; incidental and adventitious chiefly in the second sense. […] Fortuitous so strongly implies chance that it sometimes connotes the absence, or seeming absence, of a cause […] Incidental may or may not imply chance; it typically suggests a real and often a designed relationship, but one which is secondary and nonessential.

We also learn that “Deliberate implies full awareness of the nature of what one says or does and often a careful and unhurried calculation of the intended effect or of the probable consequences”, while “Plan, in its widest sense, regularly implies mental formulation of the method [of achieving a given end].”

Substantial Connection

These definitions are helpful, but not exactly enlightening. Now we know, for example, that the commission of criminal activity need not be the principle purpose of property for it to be subject to forfeiture, but it must be more than the secondary purpose of property. Let’s take a quick look at how the courts have dealt with these meanings.

On one hand, the Oklahoma Supreme Court held that marijuana residue found in a weapons safe was not enough to support forfeiture of the weapons for facilitating the possession of marijuana with intent to distribute — the presence of the marijuana was incidental and fortuitous. ⁷State ex rel. Redman v. $122.44, 231 P.3d 1150 (OK SCt. 2010). On the other hand, courts have found a substantial connection between houses and drug offenses when the houses were used to store narcotics or engage in narcotic transactions. ⁸For example, US v. Premises Known as 3639-2nd St., NE, 869 F.2d 1093 (8th Cir. 1989).

The Eighth Circuit held that there was not a substantial connection between a truck seen parked at property used to grow marijuana but used to transport roofing tile and the facilitation of the marijuana cultivation — the connection was “simply too tenuous and far removed to support its forfeiture.” ⁹US v. One 1976 Ford F-150 Pick-Up VIN F14YUB03797, 769 F.2d 525 (8th Cir. 1985). The government was unable to provide any evidence that the truck was ever used to transport marijuana or even seed, fertilizer, or other supplies used to cultivate the plants.

But the same circuit held that there was a substantial connection between the commission of child pornography offenses and the home of where the offender committed the crime. Said the court:

The house enabled Hull to establish a hardwired connection to the Internet, which allowed him to distribute the contraband. It also provided a secure place to store the images that he later distributed. Use of a computer in the privacy of the residence, rather than in a library, coffee shop, or senior center, made it easier for Hull to conceal his crimes from public scrutiny. Hull posits that he could just as easily have used a motel room, but use of the residence avoided rental costs and the attention that would be attracted by frequent visits to local motels. ¹⁰US v. Hull, 606 F.3d 524, 527-28 (8th Cir. 2010).

If anything is clear, it’s that the standard for forfeiture, even with a “substantial connection” requirement, is still relatively low. But that raises the second question: to what extent should property owners be at risk of forfeiture for the actions of third parties?

Ownership and the Outer Bounds of Forfeiture

Who owns the property is irrelevant in forfeiture cases. In fact, prior to CAFRA, which added an “innocent owner” defense to all federal forfeiture statutes, the fact that an owner was unaware that his property was used to facilitate a criminal offense had been “uniformly rejected as a defense” in a long line of cases. ¹¹Bennis at 449, quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416 US 663 (1974). For some of the earliest cases, see US v. Brig Malek Adhel, 43 US 210 (1844): “the acts of the master and crew, in cases of this sort, bind the interest of the owner of the ship, whether he be innocent or guilty; and he impliedly submits to whatever the law denounces as a forfeiture attached to the ship by reason of their unlawful or wanton wrongs”.

The problem that should be apparent is whether this principle has an outer bound. Forfeiture has been sought, after all, to varying degrees of success against multi-unit apartment buildings where a number of tenants had sold and used drugs, motels which were the site of numerous drug transactions, and businesses that had problems with customers using and selling drugs.

Courts have hypothesized about the outer bound. “It is said that a Pullman sleeper can be forfeited if a bottle of illicit liquor be taken upon it by a passenger, and that an ocean steamer can be condemned to confiscation if a package of like liquor be innocently received and transported by it,” said the Supreme Court in 1921. ¹²JW Goldsmith, Jr.-Grant Co. v. US, 254 US 505. Perhaps surprisingly though, such a situation has never reached a court. “When such an application shall be made it will be time enough to pronounce upon it,” continued the Court, a statement reiterated in 1996. ¹³Bennis at 450-51.

Since courts have not addressed the issue, it’s necessary to explore these outer bounds on our own. Two principles emerge. First, while ownership of facilitating property is irrelevant, some privity between the owner and the offender must exist. Courts have upheld forfeiture where property owners have leased, lent, or otherwise allowed the offender possession, but forfeiture of property that had been stolen or wrongfully acquired would probably not be allowed. ¹⁴I say probably because, like the Pullman sleeper and ocean steamer hypothetical, this principle has not been reached by courts but only implied. See Calero-Toledo at 689, which also cites Peisch v. Ware, 4 Cranch 347, 364 (1808); JW Goldsmith at 512; US v. One Ford Coupe Automobile, 272 US 321, 333 (1926); and Van Oster v. Kansas, 273 US 465, 467 (1926). Second, despite the many times courts have said the culpability of the owner in the underlying crime is irrelevant for in rem forfeiture, the culpability of the owner — based on similar principles in tort law — would play a role in the outer bounds of what facilitating property may properly be forfeited. This culpability would play a role in separating the Calero yachts from the ocean steamers, the Bennis automobiles from the Pullman sleepers, and the Torrent-finder domain names from the Google domain names.

The Deterrent Function of Forfeiture

It may be helpful at this point to revisit the purposes of forfeiture. Stefan D. Casella explains:

Forfeiture is also used to abate nuisances and to take the instrumentalities of crime out of circulation. For example, if drug dealers are using a “crack house” to sell drugs to children as they pass by on the way to school, the building is a danger to the health and safety of the neighborhood. Under the forfeiture laws, we can shut it down. If a boat or truck is being used to smuggle illegal aliens across the border, we can forfeit the vessel or vehicle to prevent its use time and again for the same purpose. The same is true for an airplane used to fly cocaine from Peru into Southern California, or a printing press used to mint phony $100 bills.

The idea that an instrumentality — a thing — can be treated as an offender and properly confiscated by the state as a way of preventing, deterring, or punishing crime is an ancient one, stretching at least as far back as biblical times: “if an ox gore a man or a woman to death, the ox shall be surely stoned, and its flesh shall not be eaten,” reads Exodus 21:28.

At the same time, worry over the harshness that may result from forfeiture is almost inherent. Forfeiture has “repeatedly been called a hard law” wrote Edward Shippen in a 1787 court case, a call that has continued to be repeated since then by courts, commentators, scholars, and even Congress. The harshness arises in part because of the necessities of law enforcement and the difficulties in enforcing certain laws. ¹⁵See, e.g., JW Goldsmith at 510-11. Shippen identifies one of the difficulties as the “devices of ingenious men,” making forfeiture laws “necessary.” “If the end can be accomplished without infringing the private rights of the subject, it is so much the better; but, at all events, the exigencies of government must be satisfied.” The Supreme Court said much the same in 1844:

It is not an uncommon course in the admiralty, acting under the law of nations, to treat the vessel in which or by which, or by the master or crew thereof, a wrong or offence has been done as the offender, without any regard whatsoever to the personal misconduct or responsibility of the owner thereof. And this is done from the necessity of the case, as the only adequate means of suppressing the offence or wrong, or insuring an indemnity to the injured party. ¹⁶Brig Malek Adhel at 233.

Third Party Liability and Its Limits

The deterrent function is defeated if “ingenious men” can evade forfeiture by simply divorcing ownership of property from its use. At the same time, the irrelevance of ownership to forfeiture places responsibility on property owners to ensure the things they own are not used to cause harm. “In breaches of revenue provisions some forms of property are facilities, and therefore it may be said, that Congress interposes the care and responsibility of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power of complicity and guilt in the wrong,” said the Supreme Court on one occasion. ¹⁷JW Goldsmith at 510 On another, it observed that “to the extent that such forfeiture provisions are applied to lessors, bailors, or secured creditors who are innocent of any wrongdoing, confiscation may have the desirable effect of inducing them to exercise greater care in transferring possession of their property.” ¹⁸Calero at 687-88

In fact, imposing increased responsibility on a third party to deter the wrongs of another is a common feature of the law, and there are many examples in other areas of the law that parallel what we see in forfeiture cases. ¹⁹Bennis at 452, “This deterrent mechanism is hardly unique to forfeiture. For instance, because Michigan also deters dangerous driving by making a motor vehicle owner liable for the negligent operation of the vehicle by a driver who had the owner’s consent to use it, petitioner was also potentially liable for her husband’s use of the car in violation of Michigan negligence law”; Van Oster at 467, “It is not unknown or indeed uncommon for the law to visit upon the owner of property the unpleasant consequences of the unauthorized action of one to whom he has entrusted it. Much of the jurisdiction in admiralty, so much of the statute and common law of liens as enables a mere bailee to subject the bailed property to a lien, the power of a vendor of chattels in possession to sell and convey good title to a stranger, are familiar examples. They have their counterpart in legislation imposing liability on owners of vehicles for the negligent operation by those entrusted with their use, regardless of a master-servant relation”; Phile v. Anna, 1 Dall. 197 (1787), “It must certainly affect every humane man to fee the innocent suffer; but in society this is not strange or uncommon; and the distinction may properly be taken between criminal and civil cases. The law never punishes any man criminally but for his own act, yet it frequently punishes him in his pocket, for the act of another. Thus, if a wife commits an offence, the husband is not liable to the penalties; but if she obtains the property of another by any means not felonious, he must make the payment and amends. There are a variety of other instances, in which men are responsible for one another, in consequence of their connection in society.” In copyright law, obviously, third parties may be liable for aiding, benefiting from, or inducing infringement. Automobile owners may be liable for the negligent use of their car by someone who has borrowed it.

Wal-Mart is no stranger to the extent to which the law will hold a third party responsible for acts of another. According to the Wal-Mart Litigation Project, the company has been held liable for the injuries of a man shot by an unknown assailant in the parking lot, the injuries of a man shot by a child playing with a BB gun in the store, and the wrongful death of a man shot with ammunition bought at a store by minors because an employee failed to check ID. (I realize lawsuits like this often face heavy criticism; I point them out not to suggest they are or aren’t reasonable or logical but merely to describe the extent of third party liability as it currently exists.)

But there is a limit on how far this liability can be extended in forfeiture cases. This limit was recognized over 200 years ago by the Supreme Court when it said that “a forfeiture can only be applied to those cases in which the means that are prescribed for the prevention of a forfeiture may be employed.” ²⁰Peisch at 363. The limit was restated by the Court recently when, after a survey of cases throughout history, noted that “In none of these cases did the Court apply the guilty property fiction to justify forfeiture when the owner had done all that reasonably could be expected to prevent the unlawful use of his property.” ²¹Austin v. US, 509 US 602, 616 (1993).

Courts have applied this “all reasonable means” standard in a subjective way: what is reasonable from the perspective of the owner in his specific circumstances, not what a judge would consider reasonable. “A property owner is not required to take heroic or vigilante measures to rid his or her property” of illegal activity. ²²US v. Lavaland Annex, 256 F.3d 949, 954 (10th Cir. 2001); US v. 710 Main Street, 753 F.Supp 121, 125 (SDNY 1990). But the owner must do something, and at least one court has held that being aware of suspicious facts regarding the use of property triggers the duty to act. ²³See US v. 2011 Calumet, 699 F.Supp 108, 110 (1988).

Comparisons to Tort Law

The duties of owners in the forfeiture context share some similarities to legal duties in tort law, but they are not an exact match. Perhaps this is due to the historically limited and specialized role of forfeiture. The closest analogue may be the tort of public nuisance, and in fact many state laws providing for forfeiture have been characterized as public nuisance laws. ²⁴See Bennis, Michigan statute declared any vehicle used for prostitution is a public nuisance and subject to abatement; C.J. Hendry Co. v. Moore, 318 US 133 (1943), “Section 845 of the California Fish and Game Code declares that a net used in violation of the provisions of the Code is a public nuisance and makes it the duty of any arresting officer to seize the net and report its seizure to the commission”; Van Oster, “The Kansas statute … declares that an automobile or other vehicle used in the state in the transportation of intoxicating liquor is a common nuisance and establishes a procedure followed in this case for its forfeiture and sale”; Lawton v. Steele, 152 US 133 (1894), New York act declares that “any net, etc., maintained in violation of any law for the protection of fisheries, is to be treated as a public nuisance, ‘and may be abated and summarily destroyed by any person'”. Like forfeiture, public nuisance has largely been defined through statute (although, unlike forfeiture, public nuisance also exists under common law), used to effectively address quasi-criminal activities where traditional criminal processes are ineffective. Prior to the introduction of zoning law, public nuisance laws were the only real way for towns and cities to regulate “less-desirable” businesses. And, like forfeiture, whether something is considered a public nuisance hinges more on the offense of property rather than any culpability of the owner.

And, like forfeiture cases, the outer bounds of what constitutes a public nuisance under a specific statute remains largely unexplored, especially when the property in question is engaged in legitimate business but happens to also be the site of targeted activity.

At best, we have a sort of “shoot from the hip” approach to deciding between actionable nuisances and facilitating property and legitimate businesses and uses of property. The parallel can be seen by comparing HSI Special Agent James Hayes’ response to the question of whether Google can be seized and the Washington Supreme Court’s decision in State ex rel Carroll v. Gatter. ²⁵260 P.2d 360 (1953).

Hayes gave a decidedly nontechnical and nonlegal answer to the question. He noted that the federal government was only interested in targeting sites that haven’t done “due diligence” to ensure that they aren’t linking to infringing content. Their interest was limited only to those sites where piracy was the “main premise of doing business.” The Washington Supreme Court similarly gave a muddy, gut-feeling analysis in its decision. The court was faced with the question of whether the state could properly declare and abate the Oxford Hotel in Seattle as a public nuisance targeting places used for “purposes of lewdness, assignation, or prostitution.” The hotel had been the site of several acts of prostitution (some aided by bellmen employed by the hotel). However, the court noted that the intent of the law was to target places one would find in “red light districts”, and the Oxford Hotel had “a reputation for being a decent, orderly, respectable hotel in the community.”

Can Google Be Seized Or Not

I apologize if this discussion has not been particularly illuminating. Despite the long history of forfeiture, questions about its edges and outer bounds have not been thoroughly fleshed out. With that said, I’d like to offer my two cents on whether Google is at risk for having its domain name seized.

First, I don’t think there is a substantial connection between the Google domain name and links to infringing content that may appear in search results. Google’s search engine is designed to return results from as much of the web as it can scan, whether these results are links to html pages, documents, video, or audio, etc. Any links to infringing content appear only to the extent they exist. Displaying these links is only incidental to Google’s service.

The same can not be said for a site like Torrent-finder, one of the domain names seized by ICE. A site like this searches only public torrent trackers and returns results consisting solely of torrent files. When 90-99% of such files are infringing, the connection between a site like that and piracy can hardly be called incidental. ²⁶Research by the Internet Commerce Security Laboratory at the University of Ballarat has found that 89.9 percent of torrents infringe copyright; BitTorrent census: about 99% of files copyright infringing. It is exceedingly difficult to argue that the designer of such a site didn’t have the unauthorized distribution of copyrighted works in mind when planning a site like that.

Google also has a continuing obligation, like any search engine, to remove links when it becomes aware that the content they link to is infringing. Although some would argue that Google could do a better job at this, few would say it’s not doing “due diligence” to limit the availability of links to infringing content. But again, when a site is returning only results consisting of an almost complete majority of infringing content, a much higher level of due diligence is required to remain legitimate. Simply responding to DMCA takedown notices as they arrive when faced with such widespread, apparent infringement is not enough to qualify such a service for safe harbor; this “head in the sand” approach is also not enough to immunize such a site from forfeiture.

Google, then, is in the same category of the hypothetical Pullman sleeper and cruise ship, beyond the outer bounds of forfeiture.

The bottom line is that debate over whether Google can be forfeited or not is largely academic. The government has limited resources and is not interested in going after legitimate businesses that do their due diligence and engage in reasonable measures to ensure their property isn’t used for criminal offenses. There are unfortunately plenty of pirate sites to keep ICE busy.