Operation In Our Sites

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 the PRO-IP Act and provided the legal basis of Operation In Our Sites.[1][2] 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.

To protect their intellectual property, major intellectual property owners and their representatives have strengthened U.S. government enforcement of intellectual property rights.[3] 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,[4] several policy rationales informed intellectual property enforcement, including:[2][5]

• 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[6] because Operation In Our Sites targets websites that sell counterfeit medicine.[7]

Intellectual property owners and their representatives are not surprisingly supportive of Operation In Our Sites to the government,[40][41] but some critics question the effectiveness of the program since the targeted websites are not actually seized or shut down; the program in effect only increases visitor access to agencies' servers. Accused website operators targeted by this program can circumvent Operation In Our Sites by registering a new domain name, one that cannot be regulated by the U.S., and easily resume operation.[42]

In light of the U.S. Constitution, seizures without any opportunity for a hearing are limited to extraordinary situations,[43] 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 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.[44] In addition, other critics point that Operation In Our Sites' one-sided process inevitably brings mistakes and overly broad seizures.[42]

Other critics have argued that seizures of domain through Operation in Our Sites prohibits access to all content on the allegedly infringing websites, and thus has a negative impact on free speech. Some types of targeted websites contained non-infringing speeches and conversation (ex. discussions in a chat-room, conversations in the comment section of blog posts); since the seizure operation redirects all traffic from the website, effects are felt on all material including the legitimate content that should be protected by the First Amendment of the U.S. Constitution.[9][45]

Moreover, opponents of Operation In Our Sites have criticized ICE for erroneous seizure of non-infringing domain names, and the corresponding violation of the non-infringing domain holder's First Amendment rights. 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 that provided links to pre-released songs sent to Dajaz1.com by legitimate copyright holders for promotional purposes.[46] 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 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 a 90-day period before filing a forfeiture claim, the agencies in this case secretly sought a prolonged time period which they acquired from the court, and in this instance the government held the domain name for a year without providing any notice to the owner. In November 2011, ICE returned the domain name to its owner without providing any explanation.[47][48]
• In the RojaDirecta case, the government seized the domain name because the website's discussion board included links to copyrighted content.[49] After the seizure, Puerto 80, a Spanish company that operates rojadirecta.com and rojadirecta.org unsuccessfully attempted to appeal government authorities to resolve the domain names dispute without lawsuits.[50] Puerto 80 filed a lawsuit, and in August 2012 the Court ordered the government to return the domain names.[51] As in dajaz1.com, the government was criticized in the rojadirecta case for violating free speech, holding domain names for an extended period, and returning the domain names without any apology to the domain owners.

Many domains targeted by Operation in Our Sites, including RojaDirecta[49][50][51] and Dajaz1.com,[47][48] were seized because they provided hyperlinks ("linked") to allegedly infringing material. Critics argue that use of government intervention to prevent websites from linking[52] to infringing materials undercuts the Digital Millennium Copyright Act by eliminating the copyright holders' incentive for interacting cooperatively with OSPs through the DMCA established notice and takedown system. Prior to Operation in Our Sites, copyright holders had to submit takedown notices[53] to OSPs if they wished to have links to copyright protected material removed. OSPs that complied with the takedown notices and the safe-harbor provisions outlined in the Online Copyright Infringement Liability Limitation Act received relief from the financial burden of legal fees, and damages associated with claims of secondary liability for copyright infringement.[54][55][56][57][58] If copyright holders forgo the notice and takedown provisions outlined in the DMCA and instead elect for direct government intervention through organizations like ICE, then the government may end up with sole responsibility for policing websites that link to copyright protected material. Furthermore, website owners will no longer have the ability to correct and improved wrongs without potentially facing criminal proceedings.[59]

Hana Beshara, the public face and co-founder of NinjaVideo, was familiar with the Digital Millennium Copyright Act and expected that her NinjaVideo website would be subjected to DMCA takedown notices from copyright holders in response to infringing links on NinjaVideo; she was shocked when her house was raided by Immigration and Customs Enforcement Officers. Following the raid Beshara pleaded guilty to criminal copyright infringement and was sentenced to 22 months in prison, 2 years of probation and a hefty fine.[60]

In an article published in the bimonthly political magazine The American Prospect, the author proposes that lobbying efforts on behalf of the media industry played a critical role in the adoption and implementation of Operation in Our Sites. The article further asserts that in the year prior to inception of Operation In Our Sites, large media conglomerates began providing ICE agents with lists of potential targets for the first round of raids.[8] ICE was for some time responsible for regulating and eliminating sales of counterfeit merchandise, but pressure from the entertainment industry, through lobbying and other efforts, expanded the agency's function to include enforcement against piracy.[8] Lobbying spending by the TV, music and movie industry did in fact increase dramatically from 2004 to 2010; it peaked at $123 million in 2011, then dropped to around $118 million where it stayed from 2012 to 2013.[61]