Back in November 2010, the US Government seized popular hip-hop website for alleged copyright infringement. After more than a year, the court documents have finally been unsealed, and old questions have arisen again: what process is due to a website that allegedly violates copyright? What burden of proof should a Plaintiff need to pass in order to take down a website? How much should the government be involved in a civil action for copyright infringement?

Now, of course the government has a right to seize illegal property or property that is used to engage in illegal conducts; cars, boats, and drug paraphernalia are all examples that come to mind. However, websites are fundamentally different than cars, and the big concern here revolves around the First Amendment. When the government seizes a site, it excludes any owner from publishing or communicating with it, and it prevents any user from being able to read or receive communications from it, excluding any and all parties from using the site in furtherance of their free speech rights. Courts have not yet addressed this issue in this context, and we will have to wait for a judicial resolution of the issue.

More troubling is the lack of process that Defendant and his website received. The government seized the website based on a complaint from the RIAA, the industry lobby organization for the recording industry. However, the unsealed court records show that after they achieved a seizure of the site, the RIAA failed to produce any evidence to the government to support their claim of infringing activity. Further, the government, rather than release the site because the plaintiffs could not show any evidence, continued to ask the court for multiple extensions to give the RIAA more time, but the RIAA never brought any evidence, and the site’s owner was deprived of his website for more than a year.

This action shows the need to reevaluate the IP law and its enforcement in the US. Commentators have used this case to illustrate the need for Congress to limit an expansion of power in this sphere, and questioning whether the government should even be permitted to seize private property in a civil suit for copyright infringement. When a party can use the government to take down a website, and keep it down, without recourse, for more than a year while not producing any supporting evidence, Congress needs to reconsider the broad-reaching powers that are at play here.

— Brandon Trout


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