An International Twist on Domain Name Seizure

In February of 2011, the U.S. Department of Homeland Security (Immigration and Customs Enforcement) seized the rojadirecta.org domain name[1], by authority of a seizure warrant issued pursuant to 18 U.S.C. §§ 981, 2323[2]. Rojadirecta’s principal function is to provide links to other sites where recordings of live sporting events may be downloaded in violation of copyright law[3]. ICE seized only the domain name and did not attempt to reach the servers that host Rojadirecta’s content[4].

This seizure raises several questions. First, is a domain name property within a government’s jurisdiction simply because it is maintained by a registrar based within that jurisdiction? The government argues it has jurisdiction to seize any domain name under management of a domain registrar based within the United States[5]. An analogy could be drawn to a proper exercise of traditional in rem jurisdiction, e.g. control over a foreign citizen’s assets deposited into a bank located within the United States. Although there is no authoritative consensus holding that the United States absolutely exercises jurisdiction over any domains held in a US-based registrar, extant case law supports this line of reasoning in the context of a trademark-infringing domain name[6]. Given both analogies, a court would most likely accept this rationale and find jurisdiction.

Second, to what extent should international comity limit the execution of a forfeiture? In the instant case, a Spanish trial court and appellate court had already found that Rojadirecta’s operation was operating legally, prevailing in a lawsuit brought by Spanish rights-holders[7]. The US government proceeds only on a belief that the operation violates US copyright law; its Affidavit in Support of Application for Seizure Warrant cites 18 U.S.C. §§ 2323(a)(1)(A)-(B), claiming that domain itself was “used, or intended to be used, in any manner or part to commit or facilitate the commission” of a copyright infringement[8]. The domain name itself is already twice removed from any infringement: first the domain only points to Rojadirecta’s servers, then the servers only provide links to other servers wherein infringing materials are hosted[9]. No US court has yet to decide on the matter, but it seems as though this attenuated chain may be enough to satisfy 18 U.S.C. § 2323(a)(1)(B). It is clear, however, that the attenuation is not enough to satisfy a claim for copyright infringement within the Spanish jurisdictions that tried the other two lawsuits[10].

Since the initial seizure, Rojadirecta sought to have the domain name returned, claiming the substantial hardship requirement is satisfied in showing a loss of internet traffic and First Amendment infringement[11]. Those arguments were rejected[12]. Rojadirecta continues legal action, but in the interim has registered rojadirecta.es[13]. .ES is the top level domain for Spain and remains wholly outside of the US’s jurisdiction. If the government’s objective was to stop copyright infringement, it is safe to say this seizure failed to do so.



[1] See Jonathan Stempel, U.S. seizes sports piracy websites before Super Bowl, Reuters (Feb. 2, 2011, 2:47 PM), http://www.reuters.com/article/2011/02/02/us-website-seizures-sports-idUSTRE71188X20110202.

[2] See the notice posted on Rojadirecta’s seized URL at http://rojadirecta.org.

[3] See Bianca Bosker, Rojadirecta.org One Of Several Sites SEIZED By U.S. Authorities, Huffington Post (Feb. 2, 2011, 11:13 AM), http://www.huffingtonpost.com/2011/02/02/rojadirecta-org-seized_n_817458.html.

[4] See Nate Anderson, US Customs begins pre-Super Bowl online mole-whack, Ars Technica (Feb. 1, 2011, 10:13 PM), http://arstechnica.com/tech-policy/news/2011/02/us-customs-begins-pre-super-bowl-mole-whacking.ars.

[5] Seee.g. David Kravets, Feds Seize 18 More Domains in Piracy Crackdown, Wired (Feb. 14, 2011, 6:08 PM), http://www.wired.com/threatlevel/2011/02/eighteen-domains-seized/.

[6] Seee.g. Mattel, Inc. v. Barbie-Club.com, 310 F.3d 293, 306 (2d Cir. 2002).

[7] See Ernesto, Sports Streaming/Torrent Links Site Victorious in Court, TorrentFreak (May 10, 2010), http://torrentfreak.com/sports-streaming-torrent-links-site-victorious-in-court-100510/.

[8] Aff. in Support of Application for Seizure Warrant Pursuant to 18 U.S.C. §§ 2323(a)(1)(A)-(B), 981(b) at 3 UNITED STATES OF AMERICA, v. THE FOLLOWING DOMAIN NAMES: Hq-Streams.com, Hq-Streams.net, Atdhe.net, Firstrow.net, Channelsurfing.net, Ilemi.com, Iilemi.com, Iilemii.com, Rojadirecta.org, and Rojadirecta.com, Defendants in rem., 2011 WL 320195 (S.D.N.Y.).

[9] Bosker, supra note 3.

[10] Ernesto, supra note 7.

[11] Timothy B. Lee, Judge says domain name loss is not a “substantial hardship”, Ars Technica (Aug. 5, 2011, 10:45 AM), http://arstechnica.com/tech-policy/news/2011/08/judge-says-domain-name-loss-is-not-a-substantial-hardship.ars.

[12] Id.

[13] Nate Anderson, Do domain seizures keep streaming sites down?, Ars Technica (Apr. 17, 2011, 8:00 PM), http://arstechnica.com/tech-policy/news/2011/04/do-domain-seizures-keep-streaming-sites-down.ars.

Author: Raymond Chow

As the Managing Technology Editor, Raymond is responsible for maintaining the Journal's technology assets, and designed the current iteration of the RCTLJ.org website. With a background in Architecture, he would like to pursue land use and planning, but is currently practicing employment law at Breuninger & Fellman. Raymond graduated in 2009 from NJIT with his Bachelors of Architecture, and is expected to graduate in May of 2013 with his Juris Doctorate. He maintains a portfolio at www.microzeta.com

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