At the end of January 2011 the U.S. authorities began yet another round of domain seizures, this time against sites connected with sports streaming. This third round of action in ‘Operation in Our Sites’ took control of domains owned by sports streaming site Rojadirecta.
While most owners of affected domains have decided not to appeal the seizures, the Spanish owner of the Rojadirecta, one of Spain’s most popular sites, did.
Two months ago the company behind the site, Puerto 80, filed a petition in the Southern District of New York for the return of its domains. This call was later supported by the Electronic Frontier Foundation (EFF) who together with Center for Democracy and Technology and Public Knowledge submitted an amicus brief in support of the Spanish company.
Yesterday, United States District Court Judge Paul Crotty decided to deny Puerto 80’s request, which means the domain will remain in the hands of the U.S. Government. The Judge argues that seizing Rojadirecta’s .com and .org domains does not violate the First Amendment of the Constitution.
“Puerto 80’s First Amendment argument fails,” the Judge writes.
“Puerto 80 alleges that, in seizing the domain names, the Government has suppressed the content in the ‘forums’ on its websites, which may be accessed by clicking a link in the upper left of the home page. 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.”
The Judge further ruled that the claimed 32% decline in traffic and the subsequent harm to Puerto 80’s business is not an issue as visitors can still access the site through foreign domains. Puerto 80’s argument, that users may not be aware of these alternatives, was simply waived.
“Rojadirecta argues that, because ‘there is no way to communicate the availability of these alternative sites on the .org or .com domains . . . the vast majority of users will simply stop visiting the sites altogether.’ This argument is unfounded — Rojadirecta has a large internet presence and can simply distribute information about the seizure and its new domain names to its customers,” the Judge writes.
“In addition, Puerto 80 does not explain how it generates profit or argue that it is losing a significant amount of revenue as a result of the seizure. Specifically, Puerto 80 states that it does not generate revenue from the content to which it links, and it does not claim to generate revenue from advertising displayed while such content is playing,” Judge Crotty adds.
From the above the Judge concludes that the drop in visitor traffic due to their seizure does not establish a substantial hardship, and therefore no reason exists to return the domain.
This line of reasoning goes directly against previous rulings in First Amendment cases. As the EFF points out, in two earlier Supreme Court decisions it was concluded that having alternatives available does not mean that freedom of speech isn’t violated.
According to the EFF, the peculiarities of the ruling don’t end there.
“As if misapplying the relevant substantive First Amendment analysis wasn’t bad enough, the court failed to even address the fatal procedural First Amendment flaws inherent in the seizure process: namely, that a mere finding of ‘probable cause’ does not and cannot justify a prior restraint. How the court believes that the seizure satisfies the First Amendment in this regard is a mystery,” they write.
The decision of District Court Judge Paul Crotty to stand firmly behind the Government is worrying for all other websites who operate under U.S. controlled domains. It’s yet another step in granting the Government and copyright holders more control over the Internet, at the expense of smaller businesses and the rights of citizens.