Spanish web company Puerto80 filed suit recently in U.S. District Court in New York against the U.S. Government over the seizure, by the Department of Homeland Security and Immigration and Customs Enforcement (ICE), of its popular sports forums Rojadirecta.org and Rojadirecta.com, which were used to exchange links for live streams of U.S. sporting events. Presumably, the government action was based on the possibility that some of the linked sites were operating in violation of the sports leagues copyright ownership rights.
Puerto80 has successfully defended itself against similar claims made in home courts in Spain. In the U.S. lawsuit, filed by the Durie Tangri LLP law firm, which includes Stanford IP Law Professor Mark Lemley, Puerto80 denies any liability for any copyright infringement, both as to civil and/or criminal liability.
A significant issue in the case is the use by the Government of seizure law to shut down the URLs without any prior hearing. While this allows the government to act quickly on behalf of copyright owners, it arguably does deny due process rights to companies that may have a valid defense. Secondary liability cases are fraught with complexity (see last year's Viacom v. Google case for an example), and taking away the right to present a defense until after a seizure has occurred may result in significant financial losses (although Rojadirecta can still be found at Rojadirecta.es, the company claims to have lost 30% of its traffic as a result of the seizure of the URLs).
Setting aside the criminal law claims, I wonder why the civil law seizures don't require at least an ex-parte hearing procedure, with notice to the other side, and an opportunity to be heard, similar to injunction and claim and delivery proceedings in civil law. I'll be keeping an eye on this one, and will update this blog as the case develops.
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