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 atÂ http://www.forfeiture.gov/ViewNotice.aspx?n=36666&a=0.
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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.
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:
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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.”