Full Affidavit On Latest Seizures Again Suggests Homeland Security Is Twisting The Law

by Mike Masnick, Techdirt
Feb. 04, 2011

A few days after everyone already knew it had seized the domains of some sites that apparently were associated with streaming sporting events online, Homeland Security has put out its official press release about the domain name seizures. As many people thought, Homeland Security basically admits that it decided to seize these domains at this time because of the Super Bowl. Nice to see that Homeland Security is working for the NFL these days.

Eric Goldman was kind enough to send over the affidavit that Homeland Security used to seize the domains this time around (it's embedded below), but as we saw last time around, the affidavit itself is chock full of legal and technical errors, compounded by assertions-as-facts that seem to have little basis in reality. This is immensely troubling, especially given that the specific legal issues here are hardly settled law, and Homeland Security seems to be acting as if these cases are no brainers, allowing them to flat out seize domains, even when those websites have been declared perfectly legal in their home countries.

The biggest problem is that Homeland Security seems to suggest -- without a hint of doubt -- that merely linking to infringing content is criminal copyright infringement. That is a huge stretch. The affidavit appears to make it clear that it believes that these sites are guilty of direct criminal copyright infringement, rather than any sort of contributory copyright infringement. As we've discussed in the past, the courts have tended to say that embedding and linking can be contributory infringement, but not direct infringement. Homeland Security and ICE may be in for a bit of legal trouble trying to prove that embedding is direct infringement.

As with the last batch of seizures, it quickly becomes clear that Homeland Security was taking orders from private companies, and made absolutely no effort whatsoever to determine if the assertions made by those private parties (who might be helped by having Homeland Security shut down competitors and/or more innovative solutions) were accurate. For example, the affidavit, written by yet another recent addition to the Homeland Security force (though, unlike last time, when it was a kid fresh out of college, this time the guy, agent Daniel Brazier, was a police officer before this job came calling) seems to rely solely on information from various sports leagues (the NFL, NBA, NHL, WWE and UFC -- I'm really surprised that MLB isn't included, but that's probably only because it's the off-season), and appears to make no attempt to independently verify much of the information provided by those leagues. For example, without any evidence or proof, he asserts that the leagues "suffer significant negative impact from the unauthorized streaming of live television programming."

You would think that such an assertion would require proof. There is none. There are more assertions related to this, but no evidence that wider distribution of the video (including the commercials) does any actual harm. Agent Brazier claims that because of these streams, it impacts the league's ability to sell game tickets. This is laughable. Years ago, these same sports leagues would claim that having games shown on TV "hurt" the ability to sell tickets. Only recently have some of the leagues realized this is simply untrue. Larger audiences lead to more connected fans, meaning more fans willing to come out to see games live, because they know that the live experience is totally and completely different than the on-screen experience.

I find it disturbing that Homeland Security would repeat this blatant myth in order to support suppressing and censoring websites.

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