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Operation In Our Sites

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Operation In Our Sites is an ongoing effort by the U.S. government to detect and hinder intellectual property violations on the Internet. Pursuant to this operation, governmental agencies arrest suspected people of targeted websites, seize their assets including websites' domain names. To that end, people who intend to access the targeted websites would be directed to the server operated by the U.S. government, and greeted with a graphic bearing the seals of the United States Department of Justice (DOJ), the National Intellectual Property Rights Coordination Center (NIPRCC), and U.S. Immigration and Customs Enforcement (ICE).

Background

In 2008, the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act of 2008, H.R. 4279) was established to increase civil and criminal penalties for trademark, patent and copyright infringement. The civil forfeiture provision of 18 U.S.C. § 2323 amended to PRO-IP Act and provided the legal basis of Operation In Our Sites.[1][2][3] The provision provides that any property used to commit or facilitate infringement of intellectual property rights would be subject to forfeiture to the United States Government.

Policy Background

To protect their intellectual property, major intellectual property owners and their representatives have strengthen the U.S. government's enforcement of intellectual property rights.[4] According to the Intellectual Property Enforcement Coordinator (IPEC), which was the position at the White House created by the PRO-IP Act through 15 U.S.C. § 8111 to coordinate U.S. governmental agencies that carry out the law's purpose,[5] several policy rationales informed intellectual property enforcement, including:[6][2]

  • Growth of the U.S. economy, creation of jobs for American workers and support for U.S. exports;
  • Promotion of innovation and security of America's comparative advantage in the global economy;
  • Protection of consumer trust and safety;
  • National and economic security; and
  • Validation of rights as protected under U.S. Constitution

NIPRCC also reasoned that Operation In Our Sites would protect consumers' health and safety[7] because Operation In Our Sites targets websites that sell counterfeit medicine.[8]

Domain Name Seizure Process

Operation In Our Sites's domain name seizure process was codified in18 U.S.C. § 981(b)(2), which provides for property seizures by the government. Before the seizure, government officials are supposed to investigate suspected websites to find out if they actually purchase or access counterfeit items. The government then contacts the rights holders to confirm their intellectual property rights and their possible infringement. Following that investigation, ICE and NIPRCC officials present the evidence to the U.S. Attorneys, and check the domain name registration.
If the domain name was registered in the U.S., the government would request a magistrate judge to issue a seizure warrant for the domain name. With the warrant, the domain name's title and rights are transferred to the U.S. government. After the seizure, the government is supposed to send written notice of the deadline forfeiture to the website operator within 60 days from the seizure date. The website owner can file the claim against the government within 35 days after receiving the notice. If the owner files a claim, the government could file within 90 days in order to prove that the property is subject to forfeiture. If the owner does not make the claim against the seizure, or the government successfully proves a valid seizure, the domain name would be forfeited to the government.[9][10]

See also: Search and seizure
See also: Asset forfeiture

Result of Domain Name Seizure

Notice of domain seized by DOJ, NIPRCC and ICE.

After the seizure, the domain name registry alters registered information about the domain name, including the IP address on its domain name server (DNS) as the U.S. government's property instead of original owner's. Subsequently, when a user intends to access the website from a domain that has been seized, DNS servers would reply the government server's IP address. A user who attempts to access the targeted website would be directed to the governmental server and faced with agencies' banner. As of March 2014, the user would be redirected to Youtube in order to watch ICE's campaign video.

Outcome of the Operation In Our Sites

While it is not unknown how effective Operation In Our Sites has been in preventing websites that harm the U.S. economy, agencies have seized a significant amounts of funds and counterfeit goods from targeted websites. In April and May 2012, both DOJ and ICE released figures that indicated that they had seized more than $896,000 funds and $1,500,000 counterfeit goods on commercial websites as a part of the Operation In Our Sites.[11][12][13][14]

Citing the Operation In Our Sites campaign, the government has seized a total of 2,713 domain names from June 2010 to the late January 2014.[15] As of December 2013, government banners on seized domain names have been viewed more than 122 million times.[16]

Moreover, intellectual property owners and their representatives have made supportive comments about Operation In Our Sites to the government.[17][18]

Criticism

Effectiveness for Protecting Intellectual Property

Some critics have critiques the effectiveness of the Operation In Our Sites because the program does not actually seize or shut down the targeted websites' servers, it only alters visitor access to agencies' servers. Because of this, targeted website operators can circumvent Operation In Our Sites and register new domain names, which are not administrated in the U.S., thereby easily restarting the same operation.[19]

Due Process Critiques

In light of the U.S. Constitution, seizures without any opportunity for a hearing are limited to extraordinary situations,[20] but pursuant to Operation In Our Sites, others have pointed out that the government is allowed to seize a targeted domain name without any prior notice to the owner.[9] Other critics have voiced the concern that domain name seizures could be used to circumvent the normal legal process in order to target websites that may prevail in full court.[21] In addition, other critics point that Operation In Our Sites' one-sided process inevitably brings mistakes and overly broad seizures.[19]

See also: Due process

Negative Impact on Free Speech

Other critics have argued that Operation In Our Sites has had a negative impact on free speech.

Specifically, some claim government seizures of domain named violate the lawful contents of allegedly infringing websites. For instance, some types of targeted websites contained non-infringing speeches and conversation (ex. Discussions in chat-room, conversations in the comment section of blog posts). Consequently, these critics have charged, the seizure operation affects not only unlawful materials on the targeted websites, but also legitimate content that should be protected by the First Amendment of the U.S. Constitution.[9][22]

Moreover, opponents of Operation In Our Sites have criticized that domain name seizures have been mistakenly seized by ICE, leading to violations against the First Amendment right of owners of domain names. So far, three domain names (dajaz1.com, rojadirecta.com, and rojadirecta.org) have been seized by mistake and returned to their respective owners.

  • Dajaz1.com: Dajaz1.com was a popular hip-hop music blog. It provided links to four pre-released songs, which were sent to Dajaz1.com by legitimate copyright holders for promotional purposes.[23] However, in late November 2010, at the suggestion of the Recording Industry Association of America (RIAA), ICE alleged that the links to the songs constituted copyright infringement, and thereafter seized the domain name pursuant to a warrant granted by a magistrate judge. After the seizure, the domain name owner filed a claim. Although the regular seizure process affords the government to have 90 days before filing a forfeiture claim, the agencies in this case secretly sought a prolonged time period, which they acquired from the court, and kept holding the domain name for a year without any notice to the owner. In November 2011, ICE finally returned the domain name to its owner without any explanation.[24][25]
  • In the rojadirecta case, the government seized the domain name because the website's discussion board included links to copyrighted content.[26] After the seizure, Puerto 80, a Spanish company that operates rojadirecta.com and rojadirecta.org, tried to appeal government authorities to resolve the domain names dispute without lawsuits, but did not succeed.[27] Consequently, Puerto 80 filed a lawsuit. In August 2012, the Court ordered the government to return the domain names.[28] As in dajaz1.com, the government was criticized in the rojadirecta case for violating free speech, holding domain names for an extended period, and retuning the domain names without any apology to the domain owners.

See also

References

  1. ^ Masnick, Mike (2012-06-11). "Tell The White House To Stop Illegally Seizing & Shutting Down Websites". techdirt. Retrieved 24 February 2014.
  2. ^ a b "IPEC 2010 ANNUAL REPORT" (PDF). Executive Office of the President. Retrieved 20 March 2014.
  3. ^ Sellars, Andrew. "Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names". SSRN. Retrieved 20 March 2014.
  4. ^ McSherry, Corynne; Zimmerman, Matthew (2011). "Amici Curiae brief of Electronic Frontier Foundation, Center for Democracy and Technology, and Public Knowledge in Support of Puerto 80'S Petition for Release of Seized Property" (PDF). Electronic Frontier Foundation. p. 22. Retrieved 2 February 2014.
  5. ^ "About IPEC". The Office of the U.S. Intellectual Property Enforcement Coordinator. Retrieved 24 February 2014.
  6. ^ "2010 Joint Strategic Plan on Intellectual Property Enforcement" (PDF). Executive Office of the President of the United States. 2010. Retrieved 24 February 2014.
  7. ^ "Operation In Our Sites". National Intellectual Property Rights Coordination Center. Retrieved 24 February 2014.
  8. ^ "HSI seizes 686 websites selling counterfeit medicine to unsuspecting consumers" (Press release). U.S. Immigration and Customs Enforcement. U.S. Immigration and Customs Enforcement. 2012-10-04. Retrieved 2014-02-24.
  9. ^ a b c Kopel, Karen (2013-09-16). "Operation Seizing Our Sites: How the federal government is taking domain names without prior notice" (PDF). Berkeley Technology Law Journal. Number AR. 28, 2013. Retrieved 25 February 2014.
  10. ^ Masnick, Mike (2011-12-08). "Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details..." Techdirt. Techdirt. Retrieved 4 March 2014.
  11. ^ "Department of Justice Seizes More Than $896,000 in Proceeds From the Online Sale of Counterfeit Sports Apparel Manufactured in China" (Press release). U.S. Attorney's Office District of Columbia. U.S. Attorney's Office District of Columbia. 2012-04-10. Retrieved 2014-03-01.
  12. ^ "More than $896,000 in proceeds seized from the online sale of counterfeit sports apparel manufactured in China" (Press release). U.S. Immigration and Customs Enforcement. U.S. Immigration and Customs Enforcement. 2012-04-10. Retrieved 2014-03-01.
  13. ^ "Department of Justice Seizes More Than $1.5 Million in Proceeds From the Online Sale of Counterfeit Sports Apparel Manufactured in China -Action Comes After Earlier Seizures of Another $896,000 in Proceeds" (Press release). U.S. Attorney's Office District of Columbia. U.S. Attorney's Office District of Columbia. 2012-05-11. Retrieved 2014-03-01.
  14. ^ "More than $1.5M in proceeds seized from online sale of counterfeit sports apparel manufactured in China" (Press release). U.S. Immigration and Customs Enforcement. U.S. Immigration and Customs Enforcement. 2012-05-11. Retrieved 2014-03-01.
  15. ^ "Federal agencies seize more than $21.6 million in fake NFL merchandise during 'Operation Team Player': Over 50 people arrested; 5,000-plus websites seized in coordination with NFL" (Press release). U.S. Immigration and Customs Enforcement. U.S. Immigration and Customs Enforcement. 2014-01-30. Retrieved 2014-03-01.
  16. ^ "ICE, international law enforcement agencies seize 706 domain names selling counterfeit merchandise Seizures come as US consumers flock to the Web for Cyber Monday shopping deals" (Press release). U.S. Immigration and Customs Enforcement. U.S. Immigration and Customs Enforcement. 2013-12-02. Retrieved 2014-03-01.
  17. ^ "Attorney General, ICE Announce Sweeping Anti-Piracy Initiative" (Press release). RIAA. 2010-11-29. Retrieved 2014-02-24.
  18. ^ "Entertainment Industry Coalition Sends Letter to All Members of Congress Strongly Supporting Efforts by ICE to Combat Digital Theft and Counterfeiting of Movies, TV and other Products" (PDF) (Press release). AFTRA, Deluxe Entertainment Services Group Inc., DGA, IFTA, IATSE, MPAA, NATO, News Corporation, SAG, Sony Pictures Entertainment Inc., Universal City Studios LLC, Viacom, Walt Disney Studios Motion Pictures, and Warner Bros. Entertainment Inc. 2011-03-30. Retrieved 2014-02-24.
  19. ^ a b Sohn, David (2011-02-04). "Serious Questions about Domain Name Seizures". Center for Democracy and Technology. Retrieved 3 March 2014.
  20. ^ Fuentes v. Shevin, 407 U.S. 67 (1972).
  21. ^ Wyden, Ronald (2011-02-02). "Letter from Sen. Ron Wyden to John Morton". Retrieved 3 March 2014.
  22. ^ Corynne McSherry; Matt Zimmerman (2011-09-23). "Government Violates Free Speech Rights with Domain Name Seizure" (Press release). Electronic Frontier Foundation. Electronic Frontier Foundation. Retrieved 2014-03-01.
  23. ^ Sisario, Ben (2010-12-19). "Music Web Sites Dispute Legality of Their Closing". The New York Times. Retrieved 3 March 2014.
  24. ^ Timothy B. Lee (2011-12-08). "ICE admits year-long seizure of music blog was a mistake". ars technica. Retrieved 3 March 2014.
  25. ^ Cindy Cohn (2012-05-03). "Unsealed Court Records Confirm that RIAA Delays Were Behind Year-Long Seizure of Hip Hop Music Blog". Electronic Frontier Foundation. Retrieved 3 March 2014. {{cite web}}: Unknown parameter |coauthors= ignored (|author= suggested) (help)
  26. ^ Singel, Ryan (2012-08-29). "Oops! Copyright Cops Return Seized RojaDirecta Domain Names – 19 Months Later". Wired.com. Retrieved 3 March 2014.
  27. ^ "Puerto 80 v. US". Electronic Frontier Foundation. Retrieved 3 March 2014.
  28. ^ United States of America v. rojadirecta.org and rojadirecta,com (U.S. District Court Southern District of New York 2012-08-29), Text.

Category:Internet censorship in the United States Category:Law enforcement operations in the United States Category:United States proposed federal intellectual property legislation Category:United States federal computing legislation Category:Copyright enforcement Category:Internet in the United States

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