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Court: Domain Seizures Don't Violate Free Speech
Since last year we've been following the story of how domains are being seized by the U.S. government for allegedly facilitating online piracy. The seizures received a legal challenge back in June from the owners of one such site, and now a U.S. federal court has returned a ruling in the matter:
"District Court Judge Paul Crotty decided to deny Puerto 80's request, which means the domain will remain in the hands of the U.S. Government. The Judge argues that seizing Rojadirecta's .com and .org domains does not violate the First Amendment of the Constitution. 'Puerto 80's First Amendment argument fails,' the Judge writes. 'Puerto 80 alleges that, in seizing the domain names, the Government has suppressed the content in the "forums" on its websites, which may be accessed by clicking a link in the upper left of the home page. The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous.' The judge further ruled that the claimed 32% decline in traffic and the subsequent harm to Puerto 80s business is not an issue as visitors can still access the site through foreign domains. Puerto 80's argument, that users may not be aware of these alternatives, was simply waived."
DO NOT register your domains in US.
Avoid .com domains, and if you're really successful also avoid doing business with the US altogether because of the patent trolls. Then you should be (mostly) fine for some time. Oh...I forgot...and don't link to anything you haven't written yourself...ever!
The fact that you can get information via a second route does not mean that there is no speech problem with shutting down the first one. In a 1939 case, Schneider v. New Jersey, for example, the Supreme Court held that
one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.
It repeated this basic tenet some forty years later in Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.:
We are aware of no general principle that freedom of speech may be abridged when the speakerâ(TM)s listeners could come by his message by some other means....
I'm glad I'm not the only one who believes that this ruling is questionable, and is one step closer to a World Wide Web that is completely at the mercy of copyright holders.
The actual ruling here is on a specific provision of the law where a seized domain owner to petition the courts to have the domains returned.
(Relevant part of the code here: http://www.law.cornell.edu/uscode/18/983.html)
The judge is merely ruling here that this provision doesn't meet the requirements of this specific provision.
The Judge continues, "Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate in enacting 983. See 145 Cong. Rec. H4854-02 (daily ed. June 24, 1999) (statement of Rep. Hyde) (“Individuals lives and livelihoods should not be in peril during the course of a legal challenge to a seizure.”). Puerto 80 may certainly argue this First Amendment issue in its upcoming motion to dismiss, but the First Amendment considerations discussed here certainly do not establish the kind of substantial hardship required to prevail on this petition."
A steaming cup of soykaf would be real wiz right now.
Correction: Those are the laws the sites are alleged to have violated. No court has yet ruled that Rojadirecta broke any laws.
Anyway, I would contest your implied assertion that linking is copyright infringement. Rojadirecta does not host copyrighted content, it links to sites that may do so.