Domain Seizures, De-Indexing And Censorship: Nevada Judge Dramatically Exceeds Limits Of His Authority

There’s a multi-pronged assault on the internet going on now. It comes from over-zealous legislators, the US executive branch and individual judges. There’s an effort on multiple fronts to grant over-broad powers to copyright owners to instigate domain seizures, cut-off funds and de-index “rogue” websites if found guilty of “infringement,” where that concept is very expansively defined with potentially disastrous consequences for free speech and legitimate internet operations.

As you’ve no doubt read there are two pieces of anti-piracy legislation before the US Congress: SOPA and the PROTECT IP Act (“PIPA”). While their stated purpose is to prevent piracy, copyright and trademark violations in another sense they can be seen as media companies and others using legislation to protect their legacy business models.

SOPA has been widely written about and criticized. It’s now increasingly unlikely to pass in its current form — luckily. The less-exposed PIPA is equally bad in many respects and grants sweeping powers to private litigants and courts in the interest of protecting copyright owners’ property.

This explanation of what SOPA would permit comes from the New York Times:

Under the bill, copyright owners could direct payment providers like Visa and advertising networks like Google’s to cut off business to a Web site simply by filing notice that the site — or “a portion” of it —”engages in, enables or facilitates” intellectual property infringement or is being willfully blind to it . . .

If copyright owners could starve a Web site of money simply by telling a payment processor that the site was infringing on intellectual property, the bill could stymie legitimate speech . . .

Another provision would allow the attorney general to sue foreign sites that “facilitate” piracy, and to demand that domestic search engines stop linking to them and that Internet service providers redirect traffic . . . 

Despite the fact that SOPA isn’t law, a federal (district court) judge in Nevada named Kent Dawson is acting as though it is. Numerous articles have been written this week about his order to Google, Bing, Yahoo, Facebook, Twitter and others to  “de-index” the domain names of literally hundreds of websites that luxury goods maker Chanel alleges sell counterfeit versions of its products.

Here’s the relevant portion of Dawson’s order (.pdf) regarding de-indexing:

The Group II Subject Domain Names shall immediately be de-indexed and/or removed from any search results pages of all Internet search engines including, but not limited to, Google, Bing, and Yahoo, and all social media websites including, but not limited to, Facebook, Google+, and Twitter until otherwise instructed by this Court or Plaintiff that any such domain name is authorized to be reinstated, at which time it shall be reinstated to its former status within each search engine index from which it was removed.

There are numerous procedural and jurisdictional problems with the case. In particular, Google, Bing, Facebook, Yahoo and Twitter are not parties to the litigation. The court has no jurisdiction or authority to order de-indexing of these allegedly offending sites. However, under SOPA it would have such authority to order social networks and search engines like Google to de-index sites without having formal jurisdiction over them.

The implications are pretty scary from a legal-due process standpoint and from a free speech perspective as well.

We reached out to both Google and Microsoft for comment and they offered official “no comment” statements. It’s in their respective interests to not comply with the court’s order. Doing so would validate the actions of a “rogue judge” exceeding his authority.

Postscript: Texas Republican Congressman Lamar Smith “blasted” Google’s opposition to SOPA as self-serving. However many of the bill’s supporters in Congress are responding to intense lobbying by commercial interests in the US such as the motion picture industry. The problem is not piracy, which everyone agrees is bad, but the potential authority granted private litigants and the courts on their behalf to seize domains, chill speech and shut down businesses, with limited due process.