Cyber Monday Crackdown

Posted by Cyberbear on December 3, 2010 in Copyright Law, DMCA, Intellectual Property, Internet |

Posted by: Anthony Eskridge

When the United States government took control over more than 80 domain names last week, Internet discussion forums were abuzz with cries of “Censorship!,” “MAFIAA strikes again!,” “Tyranny!,” and general slippery slope complaints. But is that what the Cyber Monday Crackdown was really about?

Most of the domain names seized were pointed at sites selling counterfeit goods. Included on the list of seized domain names (pdf) are 2009jerseys.com, coachoutletfactory.com, louis-vuitton-outlet-store.com, nibdvd.com, rapgodfathers.com, and torrent-finder.com. Many of the domain names were likely registered to deceive Internet shoppers (an issue not relevant here, but of concern should a trademark holder have desired to litigate under the Anticybersquatting Consumer Protection Act), but some are clearly related to materials under the purview of the Copyright Act.

According to a press release, Immigration and Customs Enforcement agents and the Department of Homeland Security duly investigated suspected intellectual property infringers by making undercover purchases from sites suspected of selling counterfeit goods. Once they determined the goods were actually counterfeit, they sought a warrant from a magistrate judge allowing the seizure of the domain names pointing to the offending sites along with the servers hosting those sites (see part of the warrant for search and seizure of the digital devices associated with rapgodfathers.com). A banner informing visitors of the seizures replaced the sites’ content. This effectively barred the public’s access to the vendors of the goods.

ICE’s motive in the seizures was the protection of American intellectual property, and indirectly, American jobs, innovation, financial stability, and economic opportunity, according to Attorney General Eric Holder. Whether the Crackdown was a prudent use of government time and money, as some have questioned, is not at issue here.

Most of the seizures were related to counterfeit goods. But what about torrent-finder.com? While it was still online, it was a site consisting entirely of a search field whose results were on other servers unrelated to the seized domain name. Its purpose was to help visitors find torrents. Though those torrents were likely of copyrighted materials, torrent-finder.com complied with the Grokster decision by requiring the user to search explicitly for copyrighted material and by not providing links to such infringing material directly on its site.

Another seized domain name unrelated to counterfeit goods was rapgodfathers.com, a discussion forum dedicated to hip hop music. When interviewed by torrentfreak.com, a senior staff member at rapgodfathers.com expressed surprise at the seizure, saying that the site always complied with Digital Millennium Copyright Act takedown notices. According to that source, rapgodfathers.com regularly had links posted to it of material directly downloadable from sites like RapidShare and MegaUpload. Linking to outside sites like RS and MU limits an online service provider’s ability to determine the copyright status of the linked material.

Under the DMCA, the copyright holder must inform an online service provider of the details pertaining to the content the holder wants the OSP to take down. 17 U.S.C § 512(c)(3)(A). Rapgodfathers.com was well advised to obey such takedown notices, even if those notices are overzealous. There is nothing to suggest they did not adequately comply with any notices.

But there is a difference between DMCA takedown notices and the Cyber Monday Crackdown. The former is initiated by the copyright holder or its agent, while the latter is an action prosecuted by the government. In the Crackdown, the government is collecting evidence for a criminal prosecution under 17 U.S.C. § 506.

The allegedly infringing sites were likely concerned with complying with the DMCA and the Grokster decision. That ruling held that sites that induced infringement would be contributorily liable for their users’ direct infringement. So, in the case of torrent-finder.com, by keeping a clean site devoid of links or encouragement to infringe (which they did by having a site comprised only of a search field), an owner could avoid liability.

The staff of rapgodfathers.com likely expected protection under the DMCA safe harbor provision as operators of an online service provider. Being so caught up in the fear of litigation from the RIAA, they might have lost sight of the possibility of criminal prosecution.

It is unclear how torrent-finder.com was swept up in the Crackdown. If it is true that the site merely consisted of a meta-search function (attempts to verify this claim with the Google cache and archive.org’s Wayback Machine proved fruitless), one must wonder what part of 17 U.S.C. § 506 the government aims to prosecute under.

Ultimately, the Crackdown was a law enforcement action, not driven directly by the RIAA or MPAA. While some Internet users may feel that the Crackdown was unjust, they must recognize the difference between a DMCA or civil copyright action and a law enforcement action. Law enforcement agencies are charged with upholding the law, no matter how the public feels about it. Perhaps the outcry of injustice will be loud enough to raise awareness about the state of copyright law in the United States.

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