The government has decided to return two domain names it improperly seized and held in its possession for well over a year, without so much as an explanation. This time, it was Rojadirecta.com and Rojadirecta.org, Puerto 80’s popular sports streaming sites, which the government seized back in February 2011.
Following the seizure, Puerto 80 fought back, petitioning the government for return of the domains, noting that its linking activities were not infringing. Indeed, Puerto 80 is a Spanish company, and a Spanish court had already found the sites legal. In a disappointing opinion, the district court disagreed, holding that the government did not have to return the domains. Puerto 80 appealed, and the case was still pending, until today, when the government mysteriously dropped the matter.
Dropping the case was, of course, the right move. The government's copyright arguments were incredibly weak (it’s pretty well-settled that linking is not infringement). Even more troubling, the seizures also captured plenty of legal and protected speech. Indeed, many (including EFF) have been making these arguments for well over a year. The real question is why it took so long.
This is not the government’s first time to the rodeo. Just last December, the government returned the improperly siezed Dajaz1.com domain after holding it for more than a year. (Unlike with the Rojadirecta domains, that case was never litigated and the domain’s owner was kept in the dark about the case against him the entire time.)
Seizing domains without legal basis and holding them for a year is a blatant abuse of goverment power. Puerto 80’s speech was silenced for more than 18 months. The same is true with Dajaz1 and countless other domains that the government has seized as part of its Operation in Our Sites program.
The government’s silent reversals have been limited to cases where the sites’ owners fought back. This creates the troubling implication that the reversal here is not based on a new understanding of the law and policy, but rather an attempt to avoid a ruling from the Second Circuit that could put an end to the government's overreaching.
The government should explain why it reversed its position, and provide a clear policy rationale so websites around the world assess their risk for unexplained and unjustified seizures. Until it's clear that the government will not continue to abuse its existing powers, it must not be granted new IP enforcement powers.