ICE is back at it, seizing the domain names of 10 sites allegedly involved in streaming live sports online — a week before the Super Bowl.

One of the sites involved in this latest round of seizures has previously been successful against charges of copyright infringement in a Spanish court, leading to many questions about the process. How can these sites be liable if they don’t host content? What about court precedent concerning vicarious or contributory liability? And what about DMCA safe harbors?

These are fair questions, but they reveal a misunderstanding of what is going on. To understand why, we need to take a quick look at the difference between proceedings in personam and proceedings in rem.

In personam proceedings are cases against a person (or a legal entity like a corporation) and can be civil or criminal in nature. In rem proceedings are against property (and generally considered civil in nature, even when initiated by the government). In personam proceedings are by far the most common and most familar cases. But while in rem proceedings, particularly civil forfeiture proceedings, are not well-known, they do have a long history. Colonial courts were exercising in rem jurisdiction in forfeiture cases long before the Constitution was adopted, and the First Congress passed laws providing for forfeiture for customs offenses.1

In the copyright world, individuals or entities can personally be sued or charged with direct infringement if they reproduce, distribute, publicly display or perform, or make a derivative work without permission. They can also be held liable for indirect infringement if they themselves haven’t directly infringed but aided, benefited from, or induced a direct infringer. In the US, you also have DMCA safe harbors that may limit indirect liability for certain online service providers.

Things change when we start talking about in rem proceedings. Property itself can’t be “guilty” or “liable.”2 It also can’t be indirectly liable, and it certainly couldn’t qualify for DMCA safe harbors — how would a domain name expeditiously remove infringing material after receiving a notice?

Instead, forfeiture of property through in rem proceedings is typically based on the property being either contraband (the property itself is illegal), the proceeds (“fruits”) of criminal activity, or the tools and instrumentalities used to commit criminal activity. Note that these are independent of ownership. A car used to transport narcotics across state lines may be forfeited regardless of whether the owner of the car is involved or not (though federal law does provide for an “innocent owner” defense in civil forfeiture proceedings). The relevant relationship is between the property and the underlying criminal activity. That is, the question is not whether the site itself is directly or indirectly liable for copyright infringement, as it would be had the site owner been sued in civil court.

I’ve previously written about other aspects of these domain name seizures, but today I wanted to focus solely on this distinction. Let’s start by taking a look at the law that forms the basis of ICE’s actions.

Forfeiture Under 18 US § 2323

These seizures were made pursuant to 18 USC § 2323, which provides for civil and criminal forfeiture of property in copyright infringement cases. The statute reads:

(a) Civil Forfeiture.—

(1) Property subject to forfeiture.— The following property is subject to forfeiture to the United States Government:

(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90 section 2318, 2319, 2319A, 2319B, 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).

The domain names here have been seized as property used to commit or facilitate the commission of copyright infringement, so we’ll be specifically looking at § 2323(a)(1)(B).

Domain Names Are Property

The first question we have to ask is whether a domain name itself can be considered “property” under this statute. The answer is most likely yes. Congress has explicitly established domain names as property in other contexts, most notably the Anticybersquatting Consumer Protection Act.3

Perhaps the best explanation of domain names as property comes from the Ninth Circuit, in Kremen v. Cohen.4 The court was tasked with determining whether the Kremen had a valid conversion claim against Cohen after Cohen conned a domain name registry into transferring “sex.com” over to him. Since conversion requires the wrongful disposition of a property right, the court’s first question was whether there exists a property right in domain names.

We often think of “property” narrowly — as tangibles like your house or your car. But property, as the Ninth Circuit noted, is a “broad concept that includes ‘every intangible benefit and prerogative susceptible of possession or disposition.'”5 Semantically, you could argue that just about anything counts as “property” under that definition, so we need some way of deciding what is considered property in legal contexts, especially when we talk about intangibles like domain names.

In Kremen, the court made use of a three-part test for determining whether a particular thing can be considered property in the legal sense:

  1. There must be an interest capable of precise definition
  2. It must be capable of exclusive possession or control
  3. The putative owner must have established a legitimate claim to exclusivity

Domain names satisfy all three parts, the court concluded. In addition, other courts in the past have ordered the forfeiture of domain names as part of sentencing in criminal copyright infringement cases: two examples of this are here and here. Property subject to criminal forfeiture (for copyright infringement) is the same as property subject to civil forfeiture.6

Facilitation

Since domain names are considered property for forfeiture purposes, the next step is determining whether they can be used to commit or facilitate the commission of copyright infringement.

“Facilitation” when used in forfeiture statutes generally means any activity that makes the underlying criminal activity “less difficult or ‘more or less free from obstruction or hindrance.'”7 Going back to § 2323(a)(1)(B), you’ll note that its coverage is very broad; it applies to any property used in any manner or part to facilitate the commission of a crime. Indeed, prior to 2000, many courts have read forfeiture statutes with similar “any manner or part” language very broadly — upholding the forfeiture of houses where a single drug transaction took place, for example.

That changed with the passage of the Civil Asset Forfeiture Reform Act of 2000, which provided that in all civil forfeiture statutes, “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.”8 This language “is intended to require that facilitating property have a connection to the underlying crime significantly greater than ‘incidental or fortuitous.'”9 And while the relationship between forfeiture law and the Eighth Amendment is beyond the scope of this post, I did want to note that the Constitutional prohibition against excessive fines places additional limitations on what can be forfeited.10

Putting it All Together

With all the domain names seized, there was an alleged underlying criminal offense — the unauthorized transmission of live sports events, or unauthorized streaming of movies, or unauthorized reproduction of music. It is irrelevant whether the offense was occurring on the site the domain name pointed to or somewhere else. Maybe some of these sites would be found liable if sued in civil court, maybe some wouldn’t. We’re concerned only with whether or not there is a substantial connection between the domain name and said underlying criminal offense.

The answer to that question would come down to the specific facts of each site. It’s certainly less difficult to visit a site by domain name rather than IP address. And, as the owner of the seized Torrent-Finder domain name points out, sites like these typically rely on SEO to drive attract traffic and sell ads. If the site owner is using SEO to attract visitors looking for infringing content, then the connection between the domain name and the offense is more than just incidental and fortuitous. But is it significantly more? Again, that probably depends on the design of the site. The more a site is dedicated to infringing activities and the more a site attempts to profit from infringing activities, the greater the likelihood of a substantial connection.

What you can’t do, however, is look to existing court decisions involving direct or indirect liability for infringement: in rem forfeiture and in personam liability are two different questions.

Footnotes

  1. See Austin v. US, 509 US 602 (1993) and US v. Parcel of Rumson, NJ, Land, 507 US 111 (1993). []
  2. Although you sometimes hear in rem proceedings described as operating under the legal fiction that property itself is culpable. []
  3. 15 § USC 1125(d)(2)(A). []
  4. 337 F.3d 1024 (9th Cir. 2003). []
  5. Citing Downing v. Mun. Court, 88 Cal.App.2d 345, 350 (Cali Ct of Appeals 1948). []
  6. 18 USC § 2323(b)(1). []
  7. US v. Premises Known as 3639-2nd St, NE, 869 F.2d 1093 (8th Cir. 1989). []
  8. 18 USC § 983(c)(3). []
  9. 146 Congressional Record 5231 (2000). []
  10. Austin v. US, 509 US 602 (1993). []

7 Comments

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  2. So under this theory, law enforcement can go right ahead and seize the domain name of YouTube, or any other law-abiding entity. All it takes is for some user of the site to have posted infringing content or links to infringing content. Being law-abiding is relevant, if at all, only in that it might suggest that the website owner could attempt an “innocent owner” defense — with the burden of proof on the owner, of course. And in the meantime, the seizure impairs access to any and all lawful speech hosted at that same domain name.

    Is it so hard to see why this law enforcement tactic poses serious concerns?

    • Dsohn,

      I don’t think your interpretation is correct. As the article notes:

      If the site owner is using SEO to attract visitors looking for infringing content, then the connection between the domain name and the offense is more than just incidental and fortuitous . .. The more a site is dedicated to infringing activities and the more a site attempts to profit from infringing activities, the greater the likelihood of a substantial connection.

      A “user” posting “infringing content or links” to YouTube does not even come close to a level of criminal activity that is “significantly greater than ‘incidental or fortuitous.'” Law enforcement wouldn’t seize the YouTube domain for the same reason they wouldn’t seize a Hilton hotel building for isolated incidents of drug use or prostitution.

      Moreover, the problem with slippery slope arguments like yours is that they assume judges and the law can’t make distinctions between situations that are different from one another. But judges (like the ones that authorized these seizures) and law enforcement can tell apples from oranges. To suggest otherwise is to propose that there is no rational distinction between Google and ChannelSurfing.net, which is nonsense.

      • “The more a site is dedicated to infringing activities and the more a site attempts to profit from infringing activities, the greater the likelihood of a substantial connection.”

        Translation – If the collusion of government forces and private business decide that your site is infringing, expect it to be seized. You have no say in the court case and this is yet another example of government abusing its power to protect the larger businesses that fuel it through lobbying efforts.

        How unfortunate that ICE can’t explain why these are valid tactics in supposedly stopping copyright infringement or why the accused have no say in a court of law over these procedures.

        • Sorry Jay, that’s not correct. I’m not sure what you mean by “the court case” but, as you may be aware, some of the domain name owners are challenging the seizures in a court case soon. The domain name owners can trigger additional judicial review (a judge already signed off on this once) by bringing an action in court, which is exactly what is happening here. Alternatively, they can wait and the government will file charges at a later date at which point they can challenge the charges in court.

          • When the first seizures happened, Judge Nagle signed off then closed the cases, barring an adversarial hearing. People didn’t hear about any affidavit for the original 9 until the time of the second hearing.

            Terry says that the drug seizure route is valid but I remain skeptical since the “evidence” is locked behind something we can’t see. People can still look at the IP address but seriously, why is it that the seizures have to occur in the first place when all parties involved are given no notice whatsoever?

      • When the first seizures happened, Judge Nagle signed off then closed the cases, barring an adversarial hearing.

        Cite please. Signing off on an affidavit doesn’t “close a case.”

        Also, you didn’t explain why you said that the domain name owners were given “no say in the court case.” Again, the owners are planning to contest the seizures in court, as I think you know. They can do so at any time after the seizure, or they can wait for the government to file forfeiture complaints and respond. The government has filed these already for most of the sites seized.

        • Correct. A pretrial conference for the domain names seized in the first round is set for February 21st. There’s absolutely adversarial hearings in forfeiture cases.

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