The branch of the U.S. government that typically deals with border control-Immigrations and Custom Enforcement (ICE)-began seizing U.S. web domains of sites deemed to be involved in online piracy about a year ago. While the appropriateness of that process has been questioned in Congress and elsewhere, but ICE directors have frequently noted that the sites’ owners are free to challenge the seizure in court-but none have. Now, that’s no longer the case. A Spanish sports-streaming site called Rojadirecta filed papers in a New York District Court on Monday demanding that the government give back the domains rojadirecta.com and rojadirecta.org.
The company that owns Rojadirecta, Puerto 80, filed a formal letter of objection within a few days of the seizures, back in February. After Rojadirecta’s lawyers navigated a bizarre maze of bureaucracies, it ultimately engaged the government in negotiations, but those negotiations ended in a stalemate. “On May 26, 2011, following weeks of prolonged negotiations, the government rejected Puerto 80′s offers to compromise, and informed Puerto 80 that it would not agree to return the domain names unless Puerto 80 agreed not to host or permit its users to link to any U.S. content anywhere on its sites anywhere in the world,” the company’s petition states (emphasis in original).
The Rojadirecta website-still up at alternative domain names like rojadirecta.es-offers users a wide array of links to live and recorded sports matches, including many U.S. sports matches that don’t appear to be authorized for internet broadcast. However, in its court papers, Rojadirecta notes that it does not host or stream any material itself, and describes itself as “essentially an online discussion group” that “indexes links to streams of sporting events that can already be found on the internet.”
The site, which is owned by one Igor Seoane Miñán, has 865,000 registered users and is one of the 10 most popular websites in Spain. Since the seizure, the Rojadirecta site has seen a 32% drop in traffic, its petition states. Rojadirecta and Miñán have hired a top Silicon Valley IP firm to handle its legal action, San Francisco-based Durie Tangri.
ICE Director John Morton has said that the government’s targeting of online sites is a legitimate way to enforce U.S. intellectual property laws, and such actions protect American jobs. However, ICE and DOJ officials have refused to comment on individual cases-including the most controversial cases, like Rojadirecta and certain music blogs that were targeted.
The 26-page petition has a laundry list of problems with the seizure, including:
» Rojadirecta’s lawyers say it can’t be guilty of copyright infringement at all, much less criminal copyright infringement, which is what the government is accusing it of. The site doesn’t host any infringing material whatsoever, its lawyers say. And the site has “substantial non-infringing uses”-such as links to authorized sports broadcasts on Yahoo-so it can’t be accused of secondary copyright infringement, either.
» The seizure violated site users’ First Amendment rights. “[T]he government effectively shut down an entire website, suppressing all of the speech hosted on it, based on an assertion that there was probable cause to believe that some of the material linked to by the website (though not found on the website itself) might be infringing.”
» The site’s owner was given no warning beforehand about the seizure-and the government wasn’t responsive afterwards, either, until Puerto 80 and its lawyers threatened court action. A whole section of the memo describes how the government essentially played a game of “passed the buck” when Puerto 80 said it would be demanding its domain name back. According to the document, the three main agencies that worked on the web seizures-ICE, the U.S. Attorney’s Office in the Southern District of New York, and the U.S. Department of Homeland Security-all told Puerto 80 lawyers to call different agencies, and sometimes simply didn’t return calls.
The full document is available on Techdirt, which first reported on the petition.