Apparently the Department of Homeland Security is now authorized to rewrite and enforce copyright infringement laws. In a stunning precedent, the recent round of domain seizures to shut down websites that allowed illegal streaming of the Super Bowl also included a few other websites that were seized simply for linking to infringing content.
Mike Masnick of TechDirt, who received and published a DHS seizure affidavit, had this to say in a must-read article:
…the affidavit itself is chock full of legal and technical errors, compounded by assertions-as-facts that seem to have little basis in reality. This is immensely troubling, especially given that the specific legal issues here are hardly settled law, and Homeland Security seems to be acting as if these cases are no brainers, allowing them to flat out seize domains, even when those websites have been declared perfectly legal in their home countries.
The biggest problem is that Homeland Security seems to suggest — without a hint of doubt — that merely linking to infringing content is criminal copyright infringement. That is a huge stretch. The affidavit appears to make it clear that it believes that these sites are guilty of direct criminal copyright infringement, rather than any sort of contributory copyright infringement. As we’ve discussed in the past, the courts have tended to say that embedding and linking can be contributory infringement, but not direct infringement. Homeland Security and ICE may be in for a bit of legal trouble trying to prove that embedding is direct infringement.
Until these unprecedented seizures, online copyright infringement was dealt with by simply asking infringing websites to remove the material and replace it with a link to the source. Previous cases have normally been battled out in civil court. Alternative news giant, Matt Drudge, is currently fighting a seemingly ridiculous civil lawsuit over linking to news stories.
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These new actions by the DHS and the courts seem to be motivated more by private corporate profits than by actual copyright law. Nonetheless, the agenda seems to be to make nearly every website that links to copyrighted material guilty of criminal infringement, thus justifying arbitrarily blacklisting domains deemed to be in violation of such a broad precedent. This is yet another Napoleonic guilty-until-proven-innocent action, apparently displaying the corporate state’s lack of concern for the rights of individuals and small businesses. What’s more, it is also another tyrannical tool being used to control the flow of information.
Additionally, this type of precedent would seem to massively change the Internet as we know it. What’s next, seizing websites that link to those affiliate sites, like Facebook, Google, or Twitter? Well, that’s the exact question Masnick investigated in his follow-up article, “Homeland Security Tries And Fails To Explain Why Seized Domains Are Different From Google.” Masnick reports on an interview with a DHS agent in charge of the domain seizures, James Hayes:
In the interview, John Moe asked Agent Hayes a very simple question: given that these domains were all seized based solely on the fact that they link to infringing content hosted elsewhere, and all of the same content is also linked from Google, will the Feds seize Google’s domain name? Well, more specifically, Moe asks if ICE could seize Google’s domain name. Amusingly, right after being asked, Hayes conveniently gets cut off, but he does call back and the question is asked again.
However, once he gets back, he tries to tap dance around this issue. Hayes says “no” that ICE will not seize Google’s domain name and that’s because it’s only targeting sites that “don’t do due diligence” to make sure that the content they’re linking to isn’t infringing. There’s a pretty serious problem with this claim in that it’s wrong on both sides of the equation. First off, Google, as a search engine, does no due diligence to check that links only go to non-infringing content. Second, in at least some of the cases (specifically in the case of dajaz1), we know that it was actually Homeland Security and folks like Special Agent Hayes who “failed to do their due diligence,” so the songs named in the ICE affidavit were, in fact, provided by the labels or representatives of the musicians. In other words, according to Special Agent Hayes’ own criteria, Google is more of a criminal operation that Dajaz1.
For additional information about online copyright laws and guidelines, please visit the Citizen Media Law Project.
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