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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."
Color me surprised that the Government sides in its own favor in its own cases.
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.
It appears from what the judge wrote that he considered the content being hosted at the domain when he determined seizing the domain did not violate the first amendment.
IANAL but it almost seems like the take away here is that a bunch of links are not protected speech, it seems to leave open the possibility seizing a domain might violate an individuals freedom of speech.
Had the domain pointed to a web server hosting pages about white supremacy, jihad, golf or similar it might have been protected. I am not sure what impact this ruling will have at all.
Repeal the 17th Amendment TODAY! Also Please Read http://www.gnu.org/philosophy/right-to-read.html
please route around it.
[-- Trust the Monkey --]
How can forcefully seizing a domain name, which is not criminal in any way, not be a violation of freedom of speech.
Easy. The motivation for seizing the domain was not speech.
If I take my manifesto and print it on the side of my car, and then go out and run red lights and ignore all sorts of traffic regulations, plow through a couple farmers markets, when I get pulled over and my car taken away, I can't plead freedom of speech.
Perhaps if I otherwise obey the rules of the road and it's obvious I'm getting pulled over strictly for the words written on my car, then I can make that case.
I don't know all the gritty details of this case of domain seizure. I'm not going to posit whether the seizure was right or wrong. But I think it's clear what prompted the seizure is not "speech."
And no. Just because something can be spoken or put on a t-shirt does not make it speech. I am free to stand on a street corner and speak a series of 1s and 0s that when encoded in a computer can be interpreted as video. That does not mean linking to a copyrighted video for which I do not have the copy right is protected by free speech.
(Now if I linked to an audio file of me speaking those 1s and 0s, and just happened to include information on how to encode that audio of me speaking in to a playable video file, then you have an interesting case.)
There may be many reasons for this seizure to be wrong or illegal or unprecedented. But Free Speech doesn't seem to be one of them.
Read the decision. The ruling is that this is not a violation of this individual's free speech because the information being presented is for mere business, rather than political, purposes.
Now contrast that with "Citizens United" and other recent court rulings that have held corporate commercial speech is absolutely protected by the First Amendment.
Now take a look at the recent unprecendented wave of corporate donations and junkets being flooded into the judiciary, including the Supreme Court. For the first time in history, we have Supreme Court justices openly accepting small fortunes from various interests that appeared before them.
We've got an awful lot of corruption to clean up in the judiciary before we can expect to get fair and logical decisions out of them again.
He put his boots up on the table and made a face. "The sig," he smirked. "You can waste your life in search of the sig."
I read enough to get my blood boiling as this topic always does.
[rant]
For all the world ICE looks like a puppet for the RIAA / MPAA and operates with little to no oversight or recourse for those they choose to target. It should be front page news that domains are being seized with nothing more than a bit of false/misleading testimony from an ICE agent, and a signature from a judge that knows nothing about the inter-webs and the magical tubes that are stealing things. All this is going to do is make honest businesses fear having their domain and servers under US jurisdiction.
Hosting with we-dare.net or other offshore locations is going to become par for the course for small upstart companies ("engines of the economy") until they get acquired by google or microsoft and have an army of lobbyist, lawyers and a patent trove to fend off the bull shit that now stands between a good idea and the marketplace in the US.
[/rant]
It gives me hope that people like Sen. Wyden are out there fighting the good fight though...
> The motivation for seizing the domain was not speech.
Of course it was. Rojadirecta does not host any copyrighted content; it merely links to other sites that do. Until a court ruling explicitly says otherwise, linking is protected speech. By seizing its domain names, the US government was preventing people from accessing Rojadirecta's website, and therefore denying Rojadirecta their right to free speech.
When the time comes that squelching speech doesn't violate it in the eyes of the federal courts, we have no rights at all and only 'privileges' given out, and removed, at their whim.
---- Booth was a patriot ----
It was a poor argument from the get go. Saying that their free speech rights are impeded because people might have trouble finding the site or have trouble accessing the forums is a bit of a stretch.
That is correct. What they should have argued is that the seizure violated the 5th amendment, specifically the due process clause "No person shall... be deprived of life, liberty, or property, without due process of law." ICE has deprived them of their property, a domain name is property, without due process.
Appalling to see how sold out, buyable the justice system is, in america.
but whaddya know - it couldnt end up in any other way, when you put everything to sale for the highest bidder, in a systme like capitalism.
actually it is still much better than what it could - if the 'free marketers' got full swing back in its development, we could have private army, private judiciary, private police by now.
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