In an important ruling for creators, a federal judge has decided that the U.S. government does not have to return two domain names seized by Immigrations and Customs Enforcement (ICE) for facilitating massive content theft.
Rojadirecta.com and Rojadirecta.org hosted links to live sporting events and other copyright-protected content; when those sites were seized, Spanish company Puerto 80 sued, arguing it would suffer hardship because fewer people would visit its sites, and claiming that its First Amendment rights had been violated.
Federal District Judge Paul Crotty rejected those claims. Importantly, Judge Crotty pushed back on Puerto 80’s claims that “in seizing the domain names, the Government has suppressed the content in the ‘forums’ on its websites… The main purpose of the Rojadirecta websites, however, is to catalog links to the copyrighted athletic events — any argument to the contrary is clearly disingenuous. Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate.”
This is important in the context of PROTECT IP, the U.S. Senate bill that would strengthen U.S. law enforcement’s power to go after foreign rogue websites that traffic in stolen American-made content. On one level, the Rojadirecta case demonstrates why we need PROTECT IP in the first place: shortly after Rojadirecta’s .com and .org domains were seized, the site popped up on domain names registered in other nations outside the reach of American law, and so remain accessible to American consumers.
Judge Crotty’s ruling also echoes a key element of the PROTECT IP Act, which defines a rogue site as a site that “has no significant use other than engaging in, enabling, or facilitating the reproduction, distribution, or public performance of copyrighted works, in complete or substantially complete form, in a manner that constitutes copyright infringement … or is designed, operated, or marketed by its operator or persons operating in concert with the operator, and facts or circumstances suggest is used, primarily as a means for engaging in, enabling, or facilitating” infringement (emphasis ours). Judge Crotty essentially adopts this approach when he writes that Rojadirecta’s “main purpose” is to provide links to copyrighted content, not to provide a forum for discussion.
As Constitutional law expert Floyd Abrams wrote earlier this year, entities ‘dedicated to infringing activities’ are not engaging in speech that any civilized, let alone freedom-oriented, nation protects. … [The PROTECT IP Act] does not impair or overcome the constitutional right to engage in speech; it protects creators of speech, as Congress has since this Nation was founded, by combating its theft.” Judge Crotty’s decision reinforces that sound conclusion.
Rojadirecta will be back in court later this fall, and we’ll keep watching.