Copyhype

Earlier this month, Techdirt posted a rebuttal to my article on last November’s domain name seizures. If you recall, the warrant and affidavit for the seizure of five domain names as part of the US government’s Operation in Our Sites 2.0 made its way online. Techdirt initially pointed out what it saw as errors in the warrant and affidavit in a series of posts. I responded by noting that whatever errors are in the warrant and affidavit are largely irrelevant. Seizure warrants must only show probable cause that the property in question was used to facilitate the commission of a crime — not prove it.

Techdirt followed up:

[T]he biggest flaw in Hart’s argument is that he focuses solely on the issue of probable cause for warrants, and pays no attention to the key issue that we brought up: how seizing full domain names without an adversarial hearing, based on a series of legal and technical errors is almost certainly prior restraint, and a violation of the First Amendment. As was made quite clear in Fort Wayne Books, Inc. v. Indiana, when a seizure involves issues of protected speech, a higher bar is required … In seizure cases where expressive speech is part of what is removed from circulation, the bar is higher than your average probable cause.

Fair enough. Let’s pay some attention to whether these seizures violate the First Amendment.

We’re talking here about “prior restraints”. The doctrine can be summed up as “speech may not be restrained until a final judicial determination that it’s unprotected by the First Amendment”, ¹Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). though the simplicity of that statement belies the complexities and nuances of the doctrine that courts have wrestled with as they’ve applied it.

In the US, prior restraints on speech are considered worse than punishments given after speech is made. Courts are especially suspicious of prior restraints; but at the same time, they recognize that simply labeling something a “prior restraint” does little. As the Supreme Court explained in Kingsley Books v. Brown:

The phrase “prior restraint” is not a self-wielding sword. Nor can it serve as a talismanic test. The duty of closer analysis and critical judgment in applying the thought behind the phrase has thus been authoritatively put by one who brings weighty learning to his support of constitutionally protected liberties: “What is needed,” writes Professor Paul A. Freund, “is a pragmatic assessment of its operation in the particular circumstances. The generalization that prior restraint is particularly obnoxious in civil liberties cases must yield to more particularistic analysis.” ²354 US 436, 441-42 (1957).

In this case, we’re talking here about whether the seizure — the initial taking of the property into governmental custody to initiate forfeiture proceedings — is an impermissible prior restraint. Whether the ultimate forfeiture of these domain names violates the First Amendment is a completely separate question; though, for purposes of this article, I’m assuming that they would not. Forfeiture after a final judicial determination generally doesn’t raise First Amendment issues, even if it results in some blocking of protected speech. ³See, eg, Arcara v. Cloud Books, 478 US 697 (“Book-selling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises”); 511 Detroit Street v. Kelley, 807 F.2d 1293 (6th Circ. 1986) (“We refuse to hold that a statute threatening fines that could impair the operation of a business is an impermissible prior restraint on expression, even where that business also involves dissemination of protected materials. The fact that a person does some business disseminating protected materials cannot immunize that person from large fines that may be imposed for violation of criminal law”); A&M Records v. Napster, 114 F.Supp.2d 896 (ND Ca 2000) (“In the event that Napster, Inc. cannot separate the infringing and non-infringing aspects of its service, its First Amendment argument still fails. Courts will not sustain a First Amendment challenge where the defendant entraps itself in an ‘all-or-nothing predicament.'”); US v. Pryba, 674 F.Supp. 1504 (ED Va 1987) (“The First Amendment cannot be a shield for criminal activity … The forfeiture remedy, properly construed and applied, does not impermissibly restrain further dissemination of speech”).

The argument that these domain name seizures violate the First Amendment comes down to timing: does the First Amendment require a hearing before the domain name is seized, or are the procedures available after a seizure occurs — the Rule 41(g) motion, the actual forfeiture proceedings, etc — adequate? ⁴Techdirt, then, is not quite correct in asserting that the domain name seizures have occurred with no adversarial hearing. As I pointed out earlier, the forfeiture complaint for the first round of domain name seizures was filed in court last month, providing for a hearing.

The answer to that question is actually not an easy one to answer. As far as I know, no court has heard a First Amendment challenge to the seizure of a domain name as property used in the facilitation of a crime in order to be forfeited. ⁵In CDT v. Pappert, 337 F.Supp.2d 606, a District Court struck down a state law requiring ISP’s to block access to web sites providing child pornography because it was overbroad for First Amendment purposes. But while the process used to block access to the sites was sometimes similar to the procedure used by ICE to seize these domain names, the similarities end there: (1) the state law involved obscenity rather than copyright infringement,  (2) ISP’s frequently blocked entire IP addresses rather than single domains, resulting in the blocking of thousands of unrelated and innocent web sites since multiple web sites can share the same IP address, and (3) the law provided no meaningful notice or hearing to owners of sites that had been blocked. CDT is simply not applicable to these seizures.

As I see it, we’re actually dealing with three separate questions here.

1. Are the domain names that have been seized considered “expressive content” such that a higher bar than seizure of ordinary property is required?
2. Are the seizures predicated on presumptively protected speech — the allegedly infringing works disseminated on the sites — so that, in effect, they are akin to seizing expressive content and thus require the same higher bar?
3. Is there a high enough burden caused by the seizures on the other expressive content on these web sites — message boards, blog posts, etc — making these seizures an impermissible prior restraint?

I’ll take a look at each of these questions in turn.

The Expressive Content of Domain Names

As Techdirt correctly points out, the seizure of expressive works differs from the seizure of other types of property. From Constitution of the United States, Analysis and Interpretation:

Where the warrant process is used to authorize seizure of books and other items entitled either to First Amendment protection or to First Amendment consideration, the Court has required government to observe more exacting standards than in other cases. Seizure of materials arguably protected by the First Amendment is a form of prior restraint that requires strict observance of the Fourth Amendment. At a minimum, a warrant is required, and additional safeguards may be required for large-scale seizures … Confusion remains, however, about the necessity for and the character of prior adversary hearings on the issue of obscenity.

The Supreme Court has struck down several large-scale seizures of allegedly obscene materials, which are presumptively protected by the First Amendment — Marcus v. Search Warrant, 367 US 717 (1961); Quantity of Copies of Books v. Kansas, 378 US 205 (1964); Fort Wayne Books v. Indiana, 489 US 46 (1989). Of these, though, only Quantity of Copies of Books explicitly held that a hearing was required before the seizure. ⁶Some courts and commentators have stated that Fort Wayne does as well. However, I would argue, as at least one other court has, that Fort Wayne does not, in fact, state such a rule. The rule the Court did state is far more elusive: “while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.” A Missouri District Court, however, explains that rather than a lack of pre-seizure hearing, theFort Wayne seizure was improper because “it was premised upon the fact that ‘the petition for seizure and the hearing thereon were aimed at establishing no more than probable cause to believe that a RICO violation had occurred, and the order for seizure recited no more than probable cause in that respect.’ Since there had been no preseizure hearing to establish probable cause on the issue of obscenity, the Court reasoned that probable cause to believe a RICO violation had occurred was inadequate to remove allegedly obscene books or films from circulation.” BAP v. McCulloch, 994 F.Supp. 1131, ED Mo. 1998.

The Court has also upheld as constitutional the seizure of a limited number of copies of materials to preserve as evidence — Heller v. New York, 413 US 483 (1973); New York v. PJ Video, 475 US 868 (1986). These seizures didn’t require a prior hearing, only a prompt adversary hearing. ⁷Another case I’ve seen mentioned is Bantam Books v. Sullivan, 372 US 58 (1963). I don’t believe the case is applicable here; what’s more, it says little about the issue of the timing of hearings for prior restraint, saying only that prior restraints are tolerated when the judicial determination is “almost immediate.”

So how do we fit the domain name seizures within these cases?

We don’t.

All of the above cases involve the seizure of an expressive work because of the content. Whether the seizure is for the purpose of evidence or forfeiture, the fact remains that what was seized was seized because of the message it conveyed — most often, that message being allegedly obscene.

But with the domain names at issue, the seizures were not based on the content of the domain name itself. The web sites could be called “torrent-finder.com”, “xyyzzx.com” or even “piracy-harms-creators.com” — the name itself is irrelevant. Instead, these seizures were made because the domain  names are allegedly property ⁸As to the question of whether or not domain names can be considered property used to facilitate a crime for purposes of 18 USC § 2323, the answer is most likely yes. The 9th Circuit has used a three-part test to determine if something is property: (1) “There must be 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”. (Kremen v. Cohen, 337 F.3d 1024). The court concluded that “domain names satisfy each criterion.” In addition, courts have ordered the forfeiture of domain names as part of criminal copyright infringement sentences — see, eg, here and here. Under 18 USC § 2323, the definitions for property subject to criminal forfeiture and civil forfeiture are the same. used to facilitate the commission of a crime (copyright infringement). ⁹As to the question of whether linking to infringing material can be considered facilitating the commission of copyright infringement, the answer again is likely yes. See Eugene Volokh, Crime-Facilitating Speech, 57 Stanford Law Review 1095 (2005), citing “Arista Records, Inc. v. MP3Board, Inc., 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (holding that the publisher of a link to an infringing site may be contributorily liable for the infringement that the link facilitates); Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, 1293-96 (D. Utah 1999) (enjoining defendants from ‘post[ing] on defendants’ website, addresses to websites that defendants know, or have reason to know, contain the material alleged to infringe plaintiff’s copyright’); 17 U.S.C. § 512(d) (2000) (providing a safe harbor from damages liability to people who link or refer to infringing material, but only if they didn’t know it was infringing); see also Universal City Studios, Inc. v. Corley, 273 F.3d 429, 455-58 (2d Cir. 2001) (enjoining publication of links to a page containing material that violated the Digital Millennium Copyright Act)”.

Domain names themselves can contain expressive content, though admittedly not much. Whether or not the First Amendment is implicated in any sort of regulation that targets domain names is all about context: domain names are not automatically entitled to or excluded from First Amendment protections. “The appropriate inquiry is one that fully addresses particular circumstances presented with respect to each domain name.” ¹⁰Bosley Medical Institute v. Kremer, 403 F.3d 672 (9th Circ. 2005) quoting Name.Space v. Network Solutions, 202 F.3d 573 (2nd Circ. 2000).

Perhaps the area where the First Amendment comes into play with domain names most often involves so-called “gripe sites.” The Anticybersquatting Consumer Protection Act (ACPA) allows for the forfeiture of domain names similar to a trademark owner’s mark when they were registered in bad faith — ie, for the sole purpose of selling the domain name to the trademark owner. But here, just as with obscene books, it’s the content of the domain name itself at issue. ACPA gives way to the First Amendment when the domain name is used to express an opinion rather than as a trademark.

The cases above just don’t apply here. The domain names seized are not like books — ICE didn’t target them because it disagreed with what the site owner called the site. Even if a court recognizes a specific domain name as containing an expressive element, it is unlikely to prohibit its seizure under these circumstances. ¹¹For a similar First Amendment analysis, check out Aaron Burstein, Stopping Internet-Based Tobacco Sales, 16 Health Matrix 279 (2006) which concludes that domain name seizure is a permissible commercial speech regulation.

Seizure as Pretext

Our analysis doesn’t stop here. It could be argued that the seizure of these domain names is predicated on their role in copyright infringement. If the seizures were, for example, predicated on allegedly being obscene or libelous, they might be impermissible prior restraints. That is, until there is a final judicial determination that the content of the sites is obscene or libelous, the content is assumed to be protected speech, so any attempt to block it before such a determination is not allowed by the First Amendment.

This argument can be quickly dismissed. Copyright infringement is simply not treated the same as obscenity or libel for First Amendment purposes. One example of this is that preliminary injunctions are routinely granted in copyright infringement cases while they are routinely denied in libel or obscenity cases due to the risk of prior restraint. While many have argued that copyright law should be subjected to heightened First Amendment scrutiny, the fact remains that courts have yet to accept this argument. ¹²See Eldred v. Ashcroft, 537 US 186 (2003): “The First Amendment securely protects the freedom to make— or decline to make—one’s own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them.” “Or, we add, to copy, or enable the copying of, other people’s music,” In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003).

But even among those who question the traditional treatment of copyright and the First Amendment, a distinction is made between creative and consumptive infringement. Mark Lemley and Eugene Volokh, who argue that preliminary injunctions in copyright cases are unconstitutional, don’t believe their argument reaches to “piracy and other ‘easy’ cases.” As they explain:

The danger of preliminary injunctions is that they may temporarily suppress speech that ultimately proves to be protected. If a judge can, at the time of the preliminary injunction hearing, make a reliable finding that the speech is constitutionally unprotected, rather than just that it might be unprotected, then there should be no problem with issuing the preliminary injunction.

This could happen whenever the defendant has made identical or nearly identical copies of the plaintiff’s works, and there is no claim of fair use, but only some other copyright defense (such as that defendant has a supposedly valid license, or that plaintiff’s copyright wasn’t properly renewed, or something along those lines). Most cases alleging outright piracy, as well as most claims that the defendant has exceeded the boundaries of its license, would fall within this category.

In this situation, the defendant’s conduct is not constitutionally protected speech, even if the defendant ultimately proves that it’s not a copyright infringement … courts can, pursuant to the Copyright Act’s authorization, preliminarily enjoin speech that clearly falls within the “copyright exception” without violating the First Amendment. So long as there’s a reliable determination on the merits that the speech does fall within the exception–rather than just a finding that the speech might fall within the exception–courts may act even based on only a tentative determination of other, constitutionally irrelevant, factors related to the copyright claim. This may inadvertently lead to temporary suppression of speech that ultimately proves to be noninfringing, but it won’t lead to temporary suppression of speech that is constitutionally protected. (Emphasis added) ¹³Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998).

In other words, what Lemley and Volokh are saying, and what courts have implied over the years, is that the type of wholesale copying of a work present on the sites whose domain names were seized — as opposed to copying that falls within the bounds of fair use or is somehow transformative in nature — is not free speech within the First Amendment. It may be authorized by the copyright owner, but it is not protected by the Constitution.

We can think of seizures as cousins of preliminary injunctions — both deprive the alleged infringer of something before a full determination on the  merits. If preliminary injunctions in copyright cases — especially ones involving piracy or consumptive infringement — aren’t prior restraints, than neither are seizures.

Incidental Burdens

The final argument is that seizing these domain names impacts the expressive content on web sites unrelated to infringing works — forum and blog posts, articles, public domain works being shared, etc. There’s no question that seizing a domain name has some impact on whatever content exists on a web site. The question is whether this impact violates the First Amendment.

The challenge here is that one could argue that just about every law or regulation impacts free speech. Being thrown in prison limits your ability to speak to the public; a fine reduces the amount of money you have to spend on disseminating your message. ¹⁴See Arcara v. Cloud Books, 478 US 697, 706 (1986).

We need some way to sort out when a law that isn’t aimed at speech but has an incidental impact on speech runs afoul of the First Amendment and when it doesn’t. The Supreme Court has provided one way to sort this out: when the conduct that a generally applicable law is aimed at contains an expressive element, then the application of that law in that case must take the First Amendment into consideration, otherwise, the First Amendment doesn’t apply.

In US v. O’Brien, the defendant was charged with destroying his Selective Service registration certificate during a protest. The Court noted that while the law prohibiting mutilation of such cards was aimed at nonexpressive conduct, in this case the burning of the card was done to express an opinion. The Court then provided a test, still followed today, to determine if the First Amendment was violated in situations like this. That test provides that, when conduct prohibited by law contains an expressive element, the First Amendment is not violated if the law in question (1) “is within the constitutional power of the Government”, (2) “furthers an important or substantial government interest”, (3) “the governmental interest is unrelated to the suppression of free expression”, and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” ¹⁵391 US 367, 377 (1968). Ultimately, O’Brien’s conviction was upheld under this test.

If O’Brien applies to these domain name seizures, there is a chance they are not allowed under the First Amendment. The seizures almost certainly satisfy the first three prongs of the test: copyright is specifically authorized in the constitution, ¹⁶US Const. Art 1 § 8. protecting copyrighted works from online piracy furthers an important government interest, ¹⁷See, for example, the 2010 Joint Strategic Plan on Intellectual Property Enforcement: “Now, more than ever, we need to protect the ideas, artistry, and our reputation for quality, provide our businesses with the incentives to make each new product better, reduce crimes related to intellectual property infringement and keep dangerous counterfeits out of our supply chain to protect our citizens. Strong intellectual property enforcement will help us to accomplish that.” and the seizures are certainly not aimed at suppressing whatever is being said on these web sites’ forums. That leaves the fourth prong, and while I can see making an argument that seizing the domain name of a web site places too great a burden on free speech, I’m inclined to think it doesn’t. The expressive content is still available online, it can be accessed by IP address, and getting a new domain name for the site is a nominal process (something many of the site owners did). ¹⁸I also don’t think the burden these seizures place on the site visitor’s right to access the content on these sites violates the First Amendment, in line with Supreme Court rulings like Kleindienst v. Mandel, 408 US 753 (1972).

However, it’s more likely that O’Brien doesn’t apply here. The Court in Arcara v. Cloud Books held that O’Brien only applies “where it was conduct with a significant expressive element that drew the legal remedy in the first place.” When the conduct a law targets lacks an expressive element, then the First Amendment doesn’t apply, even though the law effectively blocks incidental, protected expression.

The conduct targeted here is copyright infringement, not posting in message boards. The unauthorized distribution of copyrighted works is not protected by the First Amendment. These web sites were not involved in any sort of expressive activity through such copyright infringement. Since the seizure of their domain names was aimed at preventing this conduct, Arcara controls, and the First Amendment is not implicated. ¹⁹See Sequoia Books v. Ingemunson, 901 F.2d 630 (7th Cir. 1990) for a court applying Arcara to a case involving forfeiture.

Conclusion

The effectiveness of these seizures remains to be seen. This story indicates that in some cases, they do seem to have had some disruptive effect. And if Congress passes a new version of the Combating Online Infringement and Counterfeits Act, this method of addressing online piracy will become even more effective.

Regardless of their ultimate effectiveness, the fact remains that reducing online piracy requires innovative approaches. Seizing domain names of sites dedicated to piracy is one such novel approach — one that does not damage freedom of speech.

The Supreme Court has said in the past:

It is not for this Court thus to limit the State in resorting to various weapons in the armory of the law. Whether proscribed conduct is to be visited by a criminal prosecution or by a qui tam action or by an injunction or by some or all of these remedies in combination, is a matter within the legislature’s range of choice. See Tigner v. Texas, 310 U. S. 141, 148. If New York chooses to subject persons who disseminate obscene “literature” to criminal prosecution and also to deal with such books as deodands of old, or both, with due regard, of course, to appropriate opportunities for the trial of the underlying issue, it is not for us to gainsay its selection of remedies. Just as Near v. Minnesota, supra, one of the landmark opinions in shaping the constitutional protection of freedom of speech and of the press, left no doubts that “Liberty of speech, and of the press, is also not an absolute right,” 283 U. S., at 708, it likewise made clear that “the protection even as to previous restraint is not absolutely unlimited.” ²⁰Kingsley Books v. Brown, 354 US 436 (1957).