US sued by seized domain owner claiming linking is not infringement

Posted 15 June 2011 00:00 CEST by wconeybeer

Ten domains alleged to be involved in copyright infringement or counterfeiting activities were seized by the US Department of Homeland Security’s (DHS) “Operation in our Sites” pre-Super Bowl round-up earlier this year, despite questions surrounding the legality of the government’s actions. Now, one owner of domains seized in the raid has filed a lawsuit against the US government, claiming that his business is indeed legitimate and was harmed by the action.

Puerto 80, owner of the Rojadirecta .com and .org domains, says that it has committed no copyright infringement with its sports discussion board which contained links to illegal event streams.

According to a report by Techdirt, the filing states that Puerto 80 tried reasoning with the US government numerous times, including directly after the seizures. In May, officials responded by saying that the only “compromise” would be for the site to prohibit links to any US content.

“Because this ‘solution’ would prohibit Puerto 80 from engaging in lawful acts not prohibited by copyright law, Puerto 80 chose instead to challenge the seizure in court,” the filing states.

The major point that Puerto 80’s counsel makes in the brief is that there are several preceding cases that have been decided on the basis that hyperlinking is not a case of criminal infringement:

Indeed, several courts have held that the act of indexing and linking to copyrighted material— which was the government’s basis for seizing the domain names—is not direct or indirect copyright infringement. See Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006); see also Ticketmaster Corp. v., Inc., No. CV 99-7654 HLH(BQRX), 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (finding that hyperlinking to other sites does not constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, (SHS) 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n.12 (N.D. Cal. 2004) (“Hyperlinking per se does not constitute direct copyright infringement because there is no copying.”).

The brief also states that the seizures violated the speech rights of site members, and that the business has lost a third of its traffic because of it.

A date has not yet been set for the case to be heard.

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