Operation in our sites – Legalitiesby Aaron Kelly (The Kelly Law Firm)
Operation in our sites – Legalities
Operation in Our Sites v. 2.0
Some people shop with websites dealing in intellectual property like films and TV shows for months only to find one day a message at the domain name in lieu of the normal website:
“This domain name has been seized by ICE – Homeland Security Investigations, pursuant to a seizure warrant issued by a United States District Court under the authority of 18 U.S.C. ss. 981 and 2323.”
No, this isn’t an early April Fools prank. Domain names actually can now be seized by the United States government for infringing on the copyright of another person, and the government has been exercising this authority for some time now. The sections of the United States Code which are quoted by the Immigration & Customs Enforcement message permit the civil forfeiture of property involved in certain criminal transactions, including copyright infringement.
Recently, ICE conducted a venture known as Operation In Our Sites v. 2.0. A list of the websites can be found here [http://www.ice.gov/doclib/news/releases/2010/domain_names.pdf]. According to ICE, the domains targeted dealt in a “diverse array of counterfeit goods, including sports equipment, shoes, handbags, athletic apparel and sunglasses as well as illegal copies of copyrighted DVD boxed sets, music and software.” Among the websites seized was even a well-known Torrent-exchange site, Torrent-Finder.com.
If you own a website which has been subjected to an ICE seizure order, it is a serious matter. An ICE seizure order is necessarily an allegation by the federal government that you have committed a criminal offense. Besides the obvious problem that your valuable domain name has been seized and you will cease to obtain revenue from it, there is the more serious issue that it’s a very real possibility that you will be prosecuted if ICE is able to find out your identity.
To avoid coming under the scrutiny of ICE, it is best not to break the law. Many people, however, are unaware of what exactly the law on copyright infringement is, so here are some of the basics:
· Never copy someone else’s work or brand name without receiving their express permission to do so. This means that you cannot make copies of software, films, etc, or use the brand name of someone for merchandise they have not actually made.
· Even if you do not directly provide material which infringes on the intellectual property of others, you can still be considered an accessory to the offense and held liable for it. This means that you should not run Torrent websites even though someone else provides the content being pirated, because you are still enabling them to break the law. You should also not be under the false impression that just because you “drop ship” knockoff merchandise from out of the country, you cannot be held liable.
· Willful blindness is no excuse for breaking the law. If a business deal is too good to be true, it’s probably not true. Plenty of people were caught selling phony P90X DVDs and successfully sued by Product Partners. The retailers had every reason to believe that the merchandise was illegal, considering the price that they were able to obtain it at versus how much it is sold for in stores. Before reselling that incredibly cheap lot of Louis Vuitton bags you got your hands on, consider how likely a judge is to believe you that you had no idea it wasn’t authentic merchandise.
· You can be held liable even if you are not resident in the United States. It is highly unlikely that every owner of the 82 domain names seized by ICE in its recent operation were owned by people residing in the United States, but ICE was allowed to seek a seizure order anyways. If you are selling illegal merchandise to Americans, or using domain names or web hosts in the United States, or are doing any one of a number of other things that creates a sufficient nexus to the United States, you can still be prosecuted in the United States, and your domain name can still be seized by the United States government.
In the event that your domain name is seized by ICE, remember not to talk to any law enforcement without a lawyer being present. You may think that you are explaining away your guilt to them, but really, the more that you say, the better a case they have against you.
In such an event, you should also retain the services of a US attorney skilled in intellectual property law, and possibly customs seizure law. It is possible that, if you are legally in the right, you can get your domain name back and avoid criminal prosecution. However, the system is complicated, and customs law is some of the most complex in the country, as is intellectual property law, so it is important that your lawyer have a good knowledge of these areas.