By Robert Romano — Since being introduced in the U.S. House of Representatives, the so-called “Stop Online Piracy Act” (SOPA) has drawn strong opposition from Internet companies large and small, as well as civil libertarians and grassroots organizations. One of the major criticisms is that the legislation would give the government power to restrict access to websites that are deemed to be engaged in Internet piracy or other forms of copyright infringement.
But one thing that the American people may not be aware of is that the government, under existing forfeiture laws, is already blocking access to domestic websites in the name of protecting copyright. And in some cases they are being seized prior to any trial or even a hearing taking place.
That’s what happened to www.dajaz1.com, a popular music blog that was seized by the Immigration and Customs Enforcement (ICE) agency for over a year, only to be returned just this month without any criminal charges being filed. ICE had to admit there was never any probable cause for the seizure in the first place.
And despite turning off the website for over a year, www.dajaz1.com has not received any compensation as a result, even though the Fifth Amendment provides for such payment.
The allegation apparently originated from the Recording Industry Association of America (RIAA) itself, even though it turned out in the end that the allegedly infringing material had, the website says, been pre-released by music artists and record labels themselves.
Now, Congress wants to take this show on the road, and force search engines, social networks, file-sharing sites, and other Internet service providers to block access to sites overseas that it says would otherwise qualify for seizure under existing domestic forfeiture laws. Again, without any trial, a hearing, or even any notice.
In fact, the provisions of SOPA, even with the manager’s amendment, provide even less of an opportunity to challenge the decision than even the numerous domain seizures executed by ICE to date. They pivot off a mere court order without any hearing, and then result in a string of actions being taken, including blocking the website, targeting payment and ad services for the site, and removing the site from search engines.
Service providers are supposed to simply take the word of the Attorney General, and the judge who rubber-stamped the court order, that the material on the site is in fact infringing — even though it has not been proven in a court of law. Nor will it ever be proven in the case of foreign websites, since in most cases they will lack access to U.S. courts. The site overseas is simply supposed to take it in the shorts.
But, as in the case of www.dajaz1.com, what if the Attorney General gets it wrong?
The application of forfeiture laws to the seizure of Internet domain names is a fairly new practice, and was not intended under the original construction of the laws. It may not be the best first step to take.
For example, why not simply require a cease-and-desist takedown notice to the owner of a website from the intellectual property holder himself prior to civil or criminal actions being taken, or property being seized? In the case of social networks or any website that allows users to upload content, the owner of a website may not even be aware that infringing content is being posted.
The Digital Millennium Copyright Act (DMCA) already provides safe harbor provisions for websites that provide easy takedown procedures. But even those are apparently being abused, as in the case of Megaupload, which posted a video on YouTube promoting its site, only to have Universal Media Group order it removed — even though Megaupload says the video, “The Mega Song,” the artwork, and the music contained therein were all original, and the celebrity endorsers all provided signed agreements to have their likenesses used.
Megaupload has now sued in federal district court in the Northern District of California to affirm its rights to the video and to restrain Universal from issuing any more takedown orders. For its part, Megaupload has joined the fight against SOPA.
Said Megaupload CEO David Robb, “After this demonstration of the abuse of power by UMG, we are certain that such an instrument of Internet censorship should not be put into the hands of corporations.”
If intellectual property holders are already abusing DMCA takedown procedures and federal forfeiture laws, what will stop them from abusing SOPA? Nobody likes Internet piracy, but censoring activities otherwise protected by the First Amendment in the name of copyright is a travesty.
Robert Romano is the Senior Editor of Americans for Limited Government.