Homeland Security - Criminal Contributory Infringement Rule

Did Homeland Security Make Up A Non-Existent Criminal Contributory Infringement Rule In Seizing Domain Names?

from the questions,-questions... dept

http://www.techdirt.com/articles/20110104/12324012513/did-homeland-security-make-up-non-existent-criminal-contributory-infringement-rule-seizing-domain-names.shtml

We've been writing a lot about the highly questionable seizure of domain names by Homeland Security's Immigration & Customs Enforcement (ICE) group here over the last couple of months. The deeper you dig, the more ridiculous it gets. If you look over the full affidavit written by ICE special agent Andrew Reynolds, you realize that there are two basic elements to the claim of criminal copyright infringement that justifies the seizure of the domain name: (1) that the site links to a fair amount of content that is deemed infringing and (2) that it "profits" from this in the form of advertising.

There are a variety of problems with this reasoning in general, some of which we discussed in our recent post about the liability for sites (such as Twitter) which users use to post links to infringing content. Of course, the general response to this is that the issue of collecting a large number of such links is evidence of contributory copyright infringement in the form of "inducement." And this is where things may get tricky for Homeland Security in pushing its claims. In our comments recently there was a very interesting discussion on this issue, highlighting the fact that there is no such thing as criminal copyright inducement.

It starts out with the recognized fact that linking alone is not direct infringement, but could possibly be considered contributory infringement. However, as we've pointed out for years, contributory copyright infringement is not found in the Copyright Act but, rather, is something that the courts have more or less made up as they went along, as a form of common law. In fact, a few years back when some in Congress tried to explicitly put "inducement" into the statute with the INDUCE Act, Congress chose not to pass it. Instead, the main support for inducement as copyright infringement comes today from the Grokster decision in the Supreme Court, which explicitly notes that the Copyright Act has no such inducement standard but that it comes from common law principles that were developed around civil copyright infringement. There are serious problems with the Grokster court's interpretation of contributory copyright infringement, but we'll ignore that for now and focus on the fact that it really only discussed inducement in civil cases.

In other words, there's nothing indicating that criminal copyright inducement exists. Yes, the courts have said it's possible in civil cases, but there's no such support for making it a crime. It appears that Homeland Security seems to have just made this part up and assumed that such a crime must exist. That seems rather troubling. In fact, in a paper by law professor Mark Batholemew from a couple years ago, he highlights how contributory copyright infringement does not seem to fit with criminal copyright law, if you look at the history of copyright law and the idea of contributory infringement.

The full paper is worth digging into. It goes through the history of contributory infringement in copyrights and patents and, then, compares it to the idea of "accomplice" liability in criminal law (which is, surely, where Homeland Security will claim this made up criminal inducement comes from). Yet, as Bartholomew notes, the situations are quite different:

The analogy between accomplice liability and contributory infringement fails given careful consideration of the reasons behind imposing criminal sanctions on indirect actors. Accountability for accomplices requires a tight nexus between the mental state of the defendant and the ultimate criminal act committed by another. This paradigm cannot be used, however, to structure contributory infringement law given the different theoretical bases for the two secondary liability regimes and the particular evidentiary issues accompanying infringement.

The paper highlights the much higher evidentiary requirements to prove any sort of criminal accomplice liability, rather than typical contributory infringement. Yet, from Homeland Security's affidavit, it appears no such effort was made to actually reach the evidentiary hurdles for showing probable cause for criminal accomplice liability. Instead, the focus is mainly (though not even sufficiently) on the standards for civil copyright infringement.

That seems like yet another rather big problem for Homeland Security and the Justice Department with these seizures.