Copyhype

ICE is back at it, seizing the domain names of 10 sites allegedly involved in streaming live sports online — a week before the Super Bowl.

One of the sites involved in this latest round of seizures has previously been successful against charges of copyright infringement in a Spanish court, leading to many questions about the process. How can these sites be liable if they don’t host content? What about court precedent concerning vicarious or contributory liability? And what about DMCA safe harbors?

These are fair questions, but they reveal a misunderstanding of what is going on. To understand why, we need to take a quick look at the difference between proceedings in personam and proceedings in rem.

In personam proceedings are cases against a person (or a legal entity like a corporation) and can be civil or criminal in nature. In rem proceedings are against property (and generally considered civil in nature, even when initiated by the government). In personam proceedings are by far the most common and most familar cases. But while in rem proceedings, particularly civil forfeiture proceedings, are not well-known, they do have a long history. Colonial courts were exercising in rem jurisdiction in forfeiture cases long before the Constitution was adopted, and the First Congress passed laws providing for forfeiture for customs offenses. ¹See Austin v. US, 509 US 602 (1993) and US v. Parcel of Rumson, NJ, Land, 507 US 111 (1993).

In the copyright world, individuals or entities can personally be sued or charged with direct infringement if they reproduce, distribute, publicly display or perform, or make a derivative work without permission. They can also be held liable for indirect infringement if they themselves haven’t directly infringed but aided, benefited from, or induced a direct infringer. In the US, you also have DMCA safe harbors that may limit indirect liability for certain online service providers.

Things change when we start talking about in rem proceedings. Property itself can’t be “guilty” or “liable.” ²Although you sometimes hear in rem proceedings described as operating under the legal fiction that property itself is culpable. It also can’t be indirectly liable, and it certainly couldn’t qualify for DMCA safe harbors — how would a domain name expeditiously remove infringing material after receiving a notice?

Instead, forfeiture of property through in rem proceedings is typically based on the property being either contraband (the property itself is illegal), the proceeds (“fruits”) of criminal activity, or the tools and instrumentalities used to commit criminal activity. Note that these are independent of ownership. A car used to transport narcotics across state lines may be forfeited regardless of whether the owner of the car is involved or not (though federal law does provide for an “innocent owner” defense in civil forfeiture proceedings). The relevant relationship is between the property and the underlying criminal activity. That is, the question is not whether the site itself is directly or indirectly liable for copyright infringement, as it would be had the site owner been sued in civil court.

I’ve previously written about other aspects of these domain name seizures, but today I wanted to focus solely on this distinction. Let’s start by taking a look at the law that forms the basis of ICE’s actions.

Forfeiture Under 18 US § 2323

These seizures were made pursuant to 18 USC § 2323, which provides for civil and criminal forfeiture of property in copyright infringement cases. The statute reads:

(a) Civil Forfeiture.—

(1) Property subject to forfeiture.— The following property is subject to forfeiture to the United States Government:

(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90 section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.

(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).

(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

The domain names here have been seized as property used to commit or facilitate the commission of copyright infringement, so we’ll be specifically looking at § 2323(a)(1)(B).

Domain Names Are Property

The first question we have to ask is whether a domain name itself can be considered “property” under this statute. The answer is most likely yes. Congress has explicitly established domain names as property in other contexts, most notably the Anticybersquatting Consumer Protection Act. ³15 § USC 1125(d)(2)(A).

Perhaps the best explanation of domain names as property comes from the Ninth Circuit, in Kremen v. Cohen. ⁴337 F.3d 1024 (9th Cir. 2003). The court was tasked with determining whether the Kremen had a valid conversion claim against Cohen after Cohen conned a domain name registry into transferring “sex.com” over to him. Since conversion requires the wrongful disposition of a property right, the court’s first question was whether there exists a property right in domain names.

We often think of “property” narrowly — as tangibles like your house or your car. But property, as the Ninth Circuit noted, is a “broad concept that includes ‘every intangible benefit and prerogative susceptible of possession or disposition.'” ⁵Citing Downing v. Mun. Court, 88 Cal.App.2d 345, 350 (Cali Ct of Appeals 1948). Semantically, you could argue that just about anything counts as “property” under that definition, so we need some way of deciding what is considered property in legal contexts, especially when we talk about intangibles like domain names.

In Kremen, the court made use of a three-part test for determining whether a particular thing can be considered property in the legal sense:

1. There must be an interest capable of precise definition
2. It must be capable of exclusive possession or control
3. The putative owner must have established a legitimate claim to exclusivity

Domain names satisfy all three parts, the court concluded. In addition, other courts in the past have ordered the forfeiture of domain names as part of sentencing in criminal copyright infringement cases: two examples of this are here and here. Property subject to criminal forfeiture (for copyright infringement) is the same as property subject to civil forfeiture. ⁶18 USC § 2323(b)(1).

Facilitation

Since domain names are considered property for forfeiture purposes, the next step is determining whether they can be used to commit or facilitate the commission of copyright infringement.

“Facilitation” when used in forfeiture statutes generally means any activity that makes the underlying criminal activity “less difficult or ‘more or less free from obstruction or hindrance.'” ⁷US v. Premises Known as 3639-2nd St, NE, 869 F.2d 1093 (8th Cir. 1989). Going back to § 2323(a)(1)(B), you’ll note that its coverage is very broad; it applies to any property used in any manner or part to facilitate the commission of a crime. Indeed, prior to 2000, many courts have read forfeiture statutes with similar “any manner or part” language very broadly — upholding the forfeiture of houses where a single drug transaction took place, for example.

That changed with the passage of the Civil Asset Forfeiture Reform Act of 2000, which provided that in all civil forfeiture statutes, “if the Government’s theory of forfeiture is that the property was used to commit or facilitate the commission of a criminal offense, or was involved in the commission of a criminal offense, the Government shall establish that there was a substantial connection between the property and the offense.” ⁸18 USC § 983(c)(3). This language “is intended to require that facilitating property have a connection to the underlying crime significantly greater than ‘incidental or fortuitous.'” ⁹146 Congressional Record 5231 (2000). And while the relationship between forfeiture law and the Eighth Amendment is beyond the scope of this post, I did want to note that the Constitutional prohibition against excessive fines places additional limitations on what can be forfeited. ¹⁰Austin v. US, 509 US 602 (1993).

Putting it All Together

With all the domain names seized, there was an alleged underlying criminal offense — the unauthorized transmission of live sports events, or unauthorized streaming of movies, or unauthorized reproduction of music. It is irrelevant whether the offense was occurring on the site the domain name pointed to or somewhere else. Maybe some of these sites would be found liable if sued in civil court, maybe some wouldn’t. We’re concerned only with whether or not there is a substantial connection between the domain name and said underlying criminal offense.

The answer to that question would come down to the specific facts of each site. It’s certainly less difficult to visit a site by domain name rather than IP address. And, as the owner of the seized Torrent-Finder domain name points out, sites like these typically rely on SEO to drive attract traffic and sell ads. If the site owner is using SEO to attract visitors looking for infringing content, then the connection between the domain name and the offense is more than just incidental and fortuitous. But is it significantly more? Again, that probably depends on the design of the site. The more a site is dedicated to infringing activities and the more a site attempts to profit from infringing activities, the greater the likelihood of a substantial connection.

What you can’t do, however, is look to existing court decisions involving direct or indirect liability for infringement: in rem forfeiture and in personam liability are two different questions.