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Welcome And First Amendment in the Digital Age: How Copyright Enforcement Is Threatening Free Speech And How The Constitution Can Win
June 11, 2013
Thomas Mennecke
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The current United States government policy of criminal copyright enforcement against online storages lockers has created a disturbance in the jurisprudential force of First Amendment law. Agencies charged with the responsibility of criminal copyright enforcement, usually under the direction of the Department of Justice, respond to their mandate by the wholesale liquidation of websites suspected of facilitating copyright infringement.

This paper will analyze the closure of, the largest and most popular online storage locker, and the massive collateral effect this closure had by abrogating the First Amendment rights of web publishers. Copyright enforcement in the United States is a mix of both civilian and government involvement, with the Department of Justice heavily involved with criminal enforcement. The increased popularity of online storage websites has brought a mix of both legitimate and infringing content. While it is within the government's right to enforce the law, current strategy involves the reckless seizure of internet domain names that needlessly erodes legitimate free speech protected by the First Amendment. Most US government complaints against online storage lockers have been dropped, none have been decided by a court. may be the first. It would also be one of the largest enforcement actions brought against an online entity, considering the enormous personal wealth of its owner and size of its user base. Yet its massive size has rendered substantial and far reaching collateral First Amendment consequences, causing an untold number of publications to go silent.

Analyzing this issue, Part I of this paper will first discuss the history of, along with the enforcement action taken against it by the DOJ. Part II will expand upon the legal controversy of collateral First Amendment consequences and introduce one of the foremost players, Part III discuses First Amendment doctrine as applied to innovative technology, which comes close, but never quite answers, the issue in controversy. Part IV elaborates on the solution to this serious problem, by emphasizing the importance of applying the already existing doctrine that is abhorrent of prior restraint as a remedy.

The current vision of copyright enforcement is inconsistent with the fundamental right to free speech guaranteed by the First Amendment. Actions taken by the Department of Justice apply an arbitrary and capricious standard when enforcing copyright laws. The First Amendment doctrine does not discriminate between physically printed media and virtual media existing in the online world, however, the current culture behind copyright enforcement ignores this truth. Instead, internet publishers are treated like second class citizens and are wrongfully denied the seriousness applied to traditional media. This is fundamentally wrong, and although time will likely cure this constitutional infirmary, immediate steps can and must be taken by the courts to keep the internet safe for democracy.

Part I: - The Background Story

Essential details about MU - Even if you never heard of prior to reading this paper, if you happened to traverse the Internet between the year 2005 and 2012, chances are this website influenced your web experience in some manner. was the largest online file hosting website and was the 13th most popular website on the Internet prior to its downfall.12 This genre of website has a rather straightforward job: provide an interface for users to upload and share any type of digital file imaginable. To understand the popularity of is to understand the Internet file-sharing culture at the time of its founding in 2005. At this critical juncture,the right combination of technology and ubiquitous broad band permitted the creation of an enormous library of user generated digital media; this library contained music, movies, applications, and books, both copyrighted and public use provided a stable platform to 150 million registered and an untold number of unregistered users to upload and share over 12 billion files.34 At its peak,'s popularity had become so pervasive that a recent corporate bandwidth monitoring survey found that out of 2,500 corporate networks surveyed, nearly 57% were used to facilitate in some way (i.e., employees using company time to download videos of kittens).5 Pursuant to a Department of Justice investigation and property forfeiture affidavit, was permanently closed on January 19, 2012. This action not only took offline, but countless other users who employed as a storage facility for legitimate and legal purposes, such as the furtherance of business,6 collaborative projects,7 and personal use.

Beginnings - The arrival of occurred during a technologically fortunate, from the company's perspective, time. In 2005, two very important technologies were maturing: fast computer processors and high speed broadband. Both technologies were critical assets that aided in's success.

Digital content cannot create itself - at least not yet. One of the major differences between the Internet of the 1990s and the new millennium is the origin of content. This era witnessed the shift from generally web based, text driven content with very little multimedia to the foundations of the current ecosystem that is dependent on visual media services.

Any kind of digital visual capture devices (such as cameras and video devices) that existed in the 1990s were large and expensive and the endeavor of providing video content during this time was technologically prohibitive. It was not impossible; however, the task was generally reserved for the few users that had unique access to the necessary technology. But this meant having two things: a computer that can process the video file, and an internet connection that would permit uploading within a reasonable amount of time. Neither of these technologies were available in the 1990s to the general consumer market and thus the reason why the Internet of the 1990s was mostly text driven. Even if there was a large supply of digital content, the simple fact remained that dial-up access was the Internet standard at the time and therefore digital entertainment from unavailable to the general public. Additionally, most computer processors at the time were too slow to accommodate video files. These often very large files require many processor commands to occur per second in order to display a reliable moving image - something that was well beyond the capabilities of most computers in the 1990s. Towards the end of the 1990s, however, computers had become fast enough that listening to music and converting music into MP3 files was now a possibility. Music files are significantly smaller and less complex than video files, primarily because of their size. Towards the end of the 1990s and the beginning of the 21st century, the typical MP3 music file was only about 5 megabytes (about the size of a 40-60 page PDF file) while the typical hour and a half video file was about 650 - 750 megabytes. The amount of processor operations necessary to play an MP3 file was far more ubiquitous in the consumer market, setting the stage for a dramatic change in how people interacted online.

The idea of obtaining peer generated content was a profound change that became mainstream when Napster arrived in late 1999. Many of the changes in the market, notably faster computers, reached consumers faster than changes in the consumer Internet connectivity market. In 1999, a majority of US adults were connecting to the Internet via dial-up. As its name implies, dial-up was the mainstream method of internet connectivity prior to broadband, essentially using existing telephone technology and infrastructure to "dial-up" the local Internet gateway. This provided a slow online experience, but was adequate for most internet activities at the time. However, once the consumer market began to demand more digital content, internet connectivity speeds quickly picked up until broadband became the industry norm by 2005 when a majority of US adults connected via broadband and just in time for the launch of

What does do? - As the technology necessary to support the transfer of large files matured, the founder of (Kim Schmitz, legally changed to Kim Dotcom) launched in a world ready for everything it promised. Unlike the 1990s, cheap hardware, fast computers and sufficient broadband in the 2000s helped become a quick success.

At the simplest, served the purpose of eliminating the need and unreliability oftransferring large files from person to person and permits one user to share a single file with countless others, one of the first websites to operate in this genre. The idea caught on and is now an essential part of the modern Internet consumer ecosystem, as there are now many varieties of this type of file hosting website, such as Dropbox,9 iCloud,11 and SkyDrive11 (which is used by CUNY Law). The principle advantages of are numerous. First, any file type imaginable was permitted on the network, and second, once a member of the site, there was no limit to the amount of data one could upload and distribute.12 End users benefited from a stable network that provided fast access to data, but unlike uploaders, downloaders who wanted to download very large files that exceeded a certain limit had to upgrade to a premium account. But for general purposes the site remained free for everyone.'s popularity was driven both by it novelty and also because many of its users distributed copyrighted works. The site also generated a wide sub-culture of followers. It is not enough to simply go to and attempt to download a movie or music file, the interface of the site was little more than a login screen and the site's logo. Once a file was uploaded, the users then had the option to either publicly or privately share the file. To facilitate the sharing of files, private, independent networks that were only loosely affiliated with (through affiliate marketing) would index the content that existed on's servers. This technique gave the advantage of merely providing the network infrastructure, while letting the Internet community advertise the content. But the domain "" is just a name, which means very little without a conversation about the person who made it possible.

Who is Kim Dotcom? - No discussion about's success can happen without a discussion about the flamboyant, extravagant and charismatic founder – whose6'7", 300 pound plus personality is perhaps just as critical to's success as any other attribute. Kim Dotcom (born Kim Schmitz) is the 39 year old German national that founded At the time of's launch, Dotcom already had two convictions for various computer crimes in his home country - he was arrested twice in 1994 and convicted of "11 charges of computer fraud, 10 of data espionage, and 11 charges relating to receiving stolen business data",13 but never served time because of his age. In 2002, Schmitz's company announced a "rescue" of the failing website "", but failed to announce that his company already owned the site. The site's stock soared, and Dotcom netted $1.5 million as a result. Considered highly illegal, Dotcom was forced to run from authorities until he finally surrendered in Thailand.14 Dotcom was found guilty of insider trading; but like his first conviction, he only received time served. Nevertheless, Dotcom's already established popularity and credibility within the Internet culture gave ample primer for the launch and success of

DOJ investigation/Domain seizure - The FBI and Department of Justice (DOJ) began their investigation in March of 2010. Based on the evidence gathered by this investigation, much of it supplied by the MPAA (Motion Picture Association of America), the leadership of was indicted by a grand jury.15 From this point the seizure process for property is relatively straight forward - the affiant files an affidavit with a federal district court having jurisdiction over the location of the property and the reviewing judge, if in concurrence, signs the warrant. Once the judge signed the affidavit, this gave the FBI the authority to seize's servers conveniently located in Ashburn, Virginia by the internet hosting company Carpathia.16 The resulting FBI action was profound - users who were accustomed to seeing the home page were now confronted by a stark FBI anti-piracy warning stating the service contributed to copyright infringement. And none of the information stored on the vast server network was available to anyone except agents of the US government.

Hong Kong - In Hong Kong, where was technically headquartered, authorities in that city seized - $42 million dollars in assets.17

New Zealand - The legal action in the United States only shut the network down. However, Kim Dotcom lived in New Zealand while the remainder of the leadership was dispersed globally. In a well coordinated operation, the US Federal Prosecutor, in coordination with the FBI and DOJ, waited until the entire leadership was in New Zealand to celebrate Dotcom's birthday.18 On Friday, January 20, 2012, when the timing was right, the US government gave New Zealand authorities the OK to raid and arrest Dotcom at his residence,19 a source of intense criticism of US imperialism.20 The raid netted in excess of $47 million dollars; his $30 million dollar mansion he was renting, and an extensive list of high priced consumer gadgets and exotic cars.21

Part II - The Legal Controversy

As of April 10, 2012, the DOJ seized 758 domain names of "websites engaged in the sale and distribution of counterfeit goods and illegal copyrighted" works.22 This system has been far from perfect. The point is articulated by the seizure of two domains in particular, (a blog dedicated to hip hop music and culture) and (an indexing site designed to point users interested in watching sports with an extensive user forum). A discussion of the property seizure affidavit brings many of the criticisms of the US government's policy to light. For example, the affiant of the affidavit against and is a Special Agent with the Department of Homeland Security who has been employed since 2009 - and was tasked with a major investigation where major property and First Amendment rights were at stake in 2010. This otherwise dearth experience in investigating major crimes, however, was supplemented throughout the affidavit with information provided by the MPAA and IFPI (International Federation of the Phonographic Industry).23 Paragraphs 9 & 10 of the affidavit, for example, extensively make use of industry generated statistics to illustrate the necessity of the seizure. Further skepticism is revealed in paragraph 14, where the Special Agent makes reference to "A Bit torrent" - rather than its proper terminology "BitTorrent", to describe the functions of this communications protocol; bringing into question the technical expertise of the investigation teams handing these cases. The investigation into both sites eventually fizzled and the domain were returned; but not before at least a year passed and the return of the domains was withheld at the request of the RIAA (Recording Industry Association of America).24

In essence, the DOJ, FBI, and DHS have engaged in a "shoot first, ask questions later" approach to copyright enforcement. The tactic requires heavy reliance on the music and movie industry and their representative trade groups for assistance, as it is very unlikely that these government agencies, let alone the courts, are adequately staffed or equipped to dissect the technical nuances that can separate the infringing portions of a website from those portions that are non-infringing. may have been used by some members for infringing users, but there is no doubt that it was also substantially used for non-infringing uses as well. Like the raids against and, the collateral damage caused by the enforcement action silenced countless individual's right to free speech - such as the website, who relied on as a storage medium for large video files of sporting events that were created by the site's owner.25 is an Ohio based website that is a key player in the current legal controversy. As part of their business model, the site captures and posts videos of various sporting events in the Ohio area and used as a backup source for their video collection. When went dark, so too did's backup collection of video files.26 The EFF (Electronic Frontier Foundation) is currently advocating on their behalf in hopes of the return of's files.27 If successful, it could go a long way into sorting the very issue presented here; the collateral abrogation of First Amendment rights under the guise of copyright enforcement. In essence, this an issue of chilling effect, where the actions of government function to discourage or even eliminate legitimate and constitutionally protected speech.28

Part III - First Amendment Doctrine

The issue presented here is a case of first impression. Few courts have confronted the First Amendment implications that permeate the collateral consequences of overaggressive copyright enforcement in the digital age, and the little progress that has been made in the courts breaks no new ground in the effort to reset the course of free speech freedoms on its proper trajectory. In the absence of such judicial insight or precedent, we are instead left with the very foundation where all current (but not necessarily modern) freedom of speech jurisprudence originates, the First Amendment of the Constitution, reading:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The First Amendment, however, provides no direct relief for the issue at hand. Article 1, Section 8, Clause 8 of the Constitution reads "The Congress shall have Power...[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

These two clauses - one an Amendment and the other an enumerated power of Congress - present a constitutional dichotomy that both grants and restricts the freedom to express oneself. The rights that grant both the freedom to express oneself and simultaneously prohibit others from expressing themselves have in a sense created a judicial gridlock. As will be discussed infra, the Supreme Court has avoided pitting copyright law against First Amendment law, a practice that must come to an end if collateral abrogation, the act of enforcing copyright law against one publisher leading to the chilling effect against many others, is to be curtailed.

The absence of doctrine on this specific issue, while frustrating, is also a source of opportunity and creativity. Long standing doctrine that prohibits the government from infringing on speech might provide the avenue necessary to either bring an end to the practice through legal means, or through wiser decision-making processes which may help modern copyright enforcement avoid the collateral abrogation consequences apparent in today’s approach. The discussion, assuming the US government has not already embarrassed itself into self-correction, begins between "content-based" or "content neutral" regulations. A content-neutral law, as described by the Supreme Court is as follows:"In determining whether a regulation is content based or content neutral, we look to the purpose behind the regulation; typically, "[g]overnment regulation of expressive activity is content neutral so long as it is 'justified without reference to the content of the regulated speech.'"29 Conversely, content-based regulations are described as follows: "Deciding whether a particular regulation is content based or content neutral is not always a simple task.... As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based."30

Superficially, applying these rules to the current issue would not bode well for or The enforcement of copyright law, it would seem, fits into contours of what would be considered a “content-neutral” regulation and avoid most of the hassles of judicial scrutiny.As discussed, the government is merely doing its job of enforcing the copyrights of others, a noble goal by at least the standards of the powerful entertainment industry. However this is not the end of the analysis. There are multiple facets of First Amendment law, many of which in some capacity, but never quite directly, speaks to the issue here and readily forbid the US government from such overbroad measures currently used.

Is Copyright Law a Violation of Free Speech? - The short answer is "no" but there is an argument that it does. As the Court said in FCC, trying to delineate the difference between content-based and content-neutral is no simple matter. However, copyright law enforcement largely escapes First Amendment scrutiny. Professors Mark A. Lemleyandand Eugene Volokh make the argument that such escapism is flawed as "[c]opyright liability turns on the content of what is published."31 This position would likely find good company with Justice Hugo Black, who practiced a "liberal originalism" philosophy to First Amendment interpretation, taking the words to literally mean that Congress (or the government) shall make no law abrogating the right to free speech. Considering Justice Black's strong opinions in New York Times Co. v. United States,32 it seems Justice Black would have been a strong opponent of collateral chilling effects of free speech. Conversely, Justice Black's philosophy on First Amendment originalism found its limits in Tinker v. Des Moines33 and Street v. New York34, both cases involving conduct. Thus the conduct of copyright infringement may not be protected by liberal originalism, but the collateral issues seem like a much stronger candidate.

Justice Black would never serve long enough to hear a case similar to the issue here. The seminal case Harper & Row Publishers, Inc. v. Nation Enterprises,35 foreclosed the possibility of using the First Amendment as a defense to purported copyright infringement as "copyright supplies the economic incentive to create and disseminate ideas." While this means the First Amendment cannot be used as a defense to copyright infringement, it does not foreclose the idea that copyright law cannot abrogate the First Amendment. The court in Harper found that the amount of language from former President Gerald Ford's memoirs "are not rich in expressive content", negating much of Nation Enterprise's First Amendment argument - but leaves us with the principal that a medium that is rich in expressive content may receive a higher level of judicial scrutiny. Copyright holders enjoy considerable ‘content-neutral’ protection. These types of speech restrictions are "are justified without reference to the content of the regulated speech."36 Considering that Lemleyand and Volokh's argument turns on the idea that expressing copyrighted material is itself expressive content, from that perspective copyright holders have been subjugating the First Amendment for a long time.

Although the argument would probably never find credence in courtroom, the argument's basic principals gain strength considering the date it was argued and the current enhanced copyright enforcement techniques that liquidate entire publications. Unlike the publication in Harper, provides its users with an avenue to promote and publish their own work. Therefore, if copyright enforcement eliminates enough published content, does this become a First Amendment issue? As the Court stated in Boos v. Barry, a viewpoint-neutral law does not necessarily "render the statute content neutral." True enough, US copyright law contains no provision prohibiting or from distributing personal viewpoint based speech. Indeed, the First Amendment's hostility to content-based regulation "extends ... to prohibition of public discussion of an entire topic."38

Thus, while realism compels us to abandon the idea that copyright infringement is a viable exercise of theFirst Amendment, it seems possible that although copyright law has no particular hostility towards or's specific positions, the wholesale deconstruction of all publications generating from might be another link necessary to nudge the government's zealous enforcement out of content-neutral protection.

Constitutional Law: Where Technology, Copyright and First Amendment (sometimes) Collide - Groundbreaking in the realm of copyright law and the First Amendment, although not specifically a First Amendment cases, is Sony Corporation v. Universal City.39 But like most copyright doctrine (and possibly First Amendment doctrine), Sony (more popularly known as the Betamax case) only gives fragmented insight into how these two doctrines collide. At the time of the decision, the ability to record television broadcasting became a reality with the widespread consumer release and adoption of the Sony Betamax video tape recording system. The Burger Court, in deciding the landmark case, gives us two important propositions. First, "the sale of copying equipment, like the sale of other articles of commerce, does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." And second, "respondents failed to demonstrate that time-shifting would cause any likelihood of nonminimal harm to the potential market for, or the value of, their copyrighted works. The Betamax is, therefore, capable of substantial noninfringing uses."40

Technologically, the Sony Betamax and are polar opposites. The Betamax could not reproduce a copyrighted work at the scope and scale that user can. Reproducing a copyrighted movie with a Betamax and distributing it to say, 1 million people, would require a multitude of machines, days (if not weeks) of human labor, physical video cassettes and significant capital investment. From this perspective, the Supreme Court's analysis of the case did not have difficulty finding that an overwhelming majority of people were not going to engage in copyright infringement in a manner that would undermine the interests of copyright holders.41 is a different story. Here, all one needs is a computer - not even their own computer - upload a copyrighted file, place a link to that file on a popular social networking site or similar website, and within hours, a copyrighted work can be distributed tens of millions of people. The change in technology and its accessibility has now become a liability.

Critically, the fact that as technology becomes free, accessible and grants an immense technological benefit could possibly be denied the protections granted to technological innovation in Sony (i.e., turn a substantial, non-infringing use technology into a proscribable one with a single click) does not seem to comport with First Amendment doctrine. Even if the concession was made that is liable for copyright infringement, the government should not be let off the hook and allow the collateral damage to silence publishers who practice their First Amendment right with the aid of's technology.

The principle we can start to take from existing First Amendment doctrine is that often it deals with technology that is too antiquated to make fair contemporary analogies. As we saw in MGM v. Grokster,42 the protections that Sony granted to fledgling technologies and the First Amendment reached its limit in the more modern world and have left and free speech rights that depend on technology that might be used for dual purpose (both legitimate and illegitimate purposes) in peril.

The Grokster decision is the closest the Supreme Court has come to addressing the rapidly changing nature of speech in the electronic age. The Supreme Court, if it ever hears the case, runs a similar risk of looking too much at the size of the network at issue and not at all the chilling effects and collateral free speech implications. Much like it was unfair to compare Grokster's profound capabilities to the technology available during the Sony case, it is unfair to foreclose this defense merely because a technology becomes accessible to all socio-economic groups. It would also be unfair to compare's capabilities to Grokster for the sake of precedent.

The technologies involved here are very different. Grokster was a file-sharing computer application that accessed a large computer network of other Grokster users that shared just about any type of file imaginable. This is distinct from, which used a centralized server farm that lends itself well for sustained publication. For a time, it belonged to one of the largest "P2P" or person-to-person networks online. Tens of millions of people shared music, movies, and programs. Some of it was copyrighted, but some of it was legitimate, non-infringing files.43 Many artists intentionally used Grokster to promote their work.

The Court distinguished from Sony as the technological limitations of the time made copyright infringement with a Betamax an obscure idea. Further, the Betamax was marketed as a "time shifting" device (i.e., timing the VHS to record during a particular broadcast TV show, and then watch it later.) Grokster was free, accessible and helped build a community of users for all kinds of purposes. The sheer number of users on the network was enough for the court as "[t]he argument for imposing indirect liability in this case is, however, a powerful one, given the number of infringing downloads that occur each day using StreamCast's and Grokster's software." The Supreme Court also rejected the ninth circuit ruling, who had granted Grokster's motion to dismiss because it had significant, non-infringing uses. Rather, the Court held that just because it meets that standard, it is not the end of the inquiry. Even if the technology is used for substantial, non-infringing uses, the Court gave rights holders additional wiggle room to accommodate the possibility of targeting technology that is so pervasive such that going after each infringer is impossible with the direct copyright infringement theory. Thus, a copyright holder can attempt to prove a case against the company behind the software: "[w]hen a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement."44

The Supreme Court in Grokster did not take the opportunity to address the First Amendment issues in any capacity whatsoever despite 94 amici and other court briefs submitted supporting Grokster on First Amendment grounds or discussing First Amendment issues.45 The ACLU provided a strong defense to Grokster, attempting the convince the Court that"copyright law cannot be interpreted to require that the development of a new medium of communication (hardware or software) be prohibited simply because it is capable of misuse."46 In doing so, the Supreme Court never answered whether a "limitation on copyright also ensures consonance with our most important First Amendment values" was at play; or what standard is necessary to balance the question at issue in favor of the First Amendment, or whether to address the issue at all. With the question unanswered and unaddressed, the Court gave copyright law preference and the win.

Finding a Solution - The Grokster Court held "that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties."48 The behavior of the company behind Grokster was not looked upon favorably by the Court, as the justices commented that Grokster's management and employees frequently crossed the line into secondary liability.49 The evidence submitted against the company included their technical support emails and their advertising. The Court took exception, for example, with Grokster's advertising methodology, stating that "Grokster distributed an electronic newsletter containing links to articles promoting its software's ability to access popular copyrighted music" along with ads which read "When the lights went off at Napster ... where did the users go?"50 Napster was one of the first file-sharing networks, launched in December of 1999, that started the digital online revolution and was known as the one stop resource for music. Called "notorious"51 by the Supreme Court, it was shuttered two years later by litigation initiated by the Recording Industry Association of America (RIAA), which claimed massive copyright infringement. Grokster and other similar services were seen by the public as a replacement - however, Grokster's management made a critical error, it would seem, by promoting itself as a replacement to a service litigated out of existence because of its purported copyrighted infringement.52

Applying the rule from Grokster, might find itself aligned with the inducement theory of copyright infringement articulated by the Court, or at least enough to establish a prima facie case. shared many of the mistakes as Grokster's management did. Of course, this is highly dependent on whether Kim Dotcom is ever extradited; a possibility that is far from certitude. According to the evidence against them, their tech support frequently assisted customers by referencing copyrighted material and their interoffice emails discussed copyright issues and methods of evading the issue. Additionally, the affidavit alleges when copyright holders informed the company about infringing items on their service, such files were often not removed. Conversely, their child pornography policy was strictly enforced, giving rise to the theory that could enforce copyrights, they merely chose not to. Because the safe harbor provisions of the DMCA (Digital Millennium Copyright Act) does not apply when there is actual knowledge of infringement, this could mean that might lose protection of the safe harbor provision that grant immunity to website operators.53 But even if there's a case to be made against, it does nothing to address the question of collateral consequences for small businesses like, who produced original content and merely used as a backup.

Web publishers should not have their website domain taken from them for at least a year, then returned with little reason or explanation why the prosecution began anyway and all the while abrogating the dissemination of constitutionally protected speech. Current case law supports this notion when both protected and unprotected speech are mixed and provided or stored by the same medium. In Marcus v. Search Warrant,54 the Supreme Court forbade the wholesale seizure of entire publication inventories without due process even when some of the speech contained content that was proscribable, stating "[we] believe that Missouri's procedures, as applied in this case, lacked the safeguards which due process demands to assure nonobscene material the constitutional protection to which it is entitled. "The principal from Marcus should be applicable in the instant case - just as the reproduction of copyrighted material does not receive First Amendment protection, neither does obscene material. The constitutional infirmary in Marcus was exposed when the Court found that due process protections granted to the owner of the publications to challenge whether the material was non-protected obscenity or not. Thus, case law supports the theory that eliminating entire swaths of speech without due process is unconstitutional especially if the owner cannot challenge the seizure.

The lack of specific case law permits creativity and lends itself well to analogies on well settled doctrine that should be applicable here. The doctrine against prior restraint is designed to avert the types of substantive evils committed in the past. For example, The Licensing Act of 1662,55 a classic case of legal prior restraint where "seditious and heretical books" were prohibited from publication and anyone wishing to publish first had to await government approval. In the modern world, the Supreme Court has "....interpreted these guarantees [of the First Amendment] to afford special protection against orders that prohibit the publication or broadcast of particular information or commentary orders that impose a "previous" or "prior" restraint on speech."56 The doctrine against prior restraint leads to the proposed solution, as this analysis will first discuss the current case law and remedies that are available, and then expand on how this process can be vastly improved such that First Amendment principals are safeguarded during the copyright enforcement process.

Part IV - Proposed Solution

The current investigation and domain return policy of the United States government is an unsustainable abrogation of First Amendment rights of publishers who utilize web services like The MGM decision created a significant barrier to free speech protection. The plurality focused too much on the balance between innovative technology and protecting copyrights. With the question narrowed to "Does the Betamax defense eliminate secondary liability?" and answered in the negative, those looking to abrogate free speech need only satisfy a prima facie case against the secondary copyright right infringer on an inducement theory. That prima facie showing would also serve to take the service offline, along with silencing countless publications reliant on the web service. The Grokster Court narrows the issue by not revisiting the Betamax case since the technology itself was not the controlling issue, rather whether other theories of liability were available to MGM. Indeed, MGM did not sue Grokster for using P2P technology; they were sued because MGM felt they were encouraging users to commit copyright infringement. Although the court seemed to recognize that Grokster was capable of significant, non-infringing uses, it never addressed the First Amendment issues, leaving in its wake a flimsy "inducement theory" rule that continues to have a chilling effect on free speech. After the Grokster case was remanded from the Supreme Court, the district court set what the EFF called a "broad statement" on inducement liability.57 Justice Steven Wilson wrote, "Thus, Plaintiffs need not prove that StreamCast undertook specific actions, beyond product distribution, that caused specific acts of infringement. Instead, Plaintiffs need prove only that StreamCast distributed the product with the intent to encourage infringement."58 The EFF posits this could mean potentially devastating chilling effect on innovation, while the Center for Democracy and Technology cite that although the substantial burden to prove intent is still good law and is generally more optimistic than the EFF, but equally recognizes there "remains some risk, however, that certain passages from the lower court decision could be misused in future cases with very different overall factual contexts."59 One only needs to see the current issue with and to see how the inducement theory could potentially spiral out of control.

It does not help that the Ginsberg concurrence sets a frighteningly high standard for Betamax protection. Although Grokster was recognized by the plurality and Justice Breyer's concurrence of having "substantial, non-infringing use", Ginsberg dismissed the evidentiary findings regarding this, "finding of any fair use and little beyond anecdotal evidence of noninfringing uses."60 Further, Ginsberg held the size of the network against Grokster, and further requiring the developer to prove the non-infringing files existing on the network are actually put into use.61 Further still, Ginsburg would tighten the Betamax noose by requiring the alleged infringing company to provide significant amounts of evidence to prove the technology would have viability aside from infringing purposes.62

Justice Breyer goes in the opposite direction in his concurrence and provides some framework for a solution, but still avoids the First Amendment issue. In Breyer's concurrence, he agrees with the court that a "distributor of a dual-use technology may be liable for the infringing activities of third parties where he or she actively seeks to advance the infringement."63 However, a more sympathetic Breyer applies the Betamax standard to Grokster and finds the technology itself would be protected. Using a much diminished standard to find non-infringing uses, Breyer considers and prefers Betamax's lenient standard, which only requires basing a "substantial, non-infringing use" finding on evidence that shows "...the likely existence of a substantial market for authorized copying upon general declarations, some survey data, and common sense."64 But the merits of the Betamax defense as applied to Grokster are never addressed because all justices felt that Grokster committed so many ancillary acts of secondary copyright infringement that the question of the technology's legitimacy never was at issue. And it is no secret that if the Supreme Court can avoid ruling on a constitutional issue, it will. This policy is known as "Constitutional Avoidance” or the doctrine of avoidance of ruling on an issue constitutionally by giving effect to congressional intent.65 But there can be no doubt that if Ginsberg could re-envision the Betamax defense, the burden of proof required upon innovators would be substantial. Under such a theory, whenever the RIAA or MPAA or other copyright holders do not like a new technology that threatens a more traditional methods of distribution, a copyright action against the developer, whether in civilian court or initiated via a criminal investigation by the Department of Justice, would be nearly impossible to defend against. But as it stands now, even if an innovator of technology can mount a Betamax defense, the First Amendment question remains elusive. Therefore, while Breyer's concurrence gives us a good start, it remains an unfinished analysis. Technology that may be dual-use for both infringing and non-infringing uses, where the operator is in danger of secondary copyright liability, must have First Amendment interests balanced along with the enforcement of copyrights.

The MGM decision leaves the court with few tools to address First Amendment issues since the "substantial, non-infringing use" standard and the secondary liability analysis fail to consider the adverse impact copyright enforcement has on speech. This lack of judicial guidance has reverberated to the present, where once again third parties find themselves silenced. However, because of the notable technological differences between Grokster and, the actions of the Department of Justice coupled with the flimsy inducement standard established by MGM might make the impact onthe First Amendment that much worse. In MGM, a song publisher who used Grokster to distribute a file can find a different P2P network to promote its work. Because provides a permanency that P2P networking cannot, publishers like who use file-hosting websites as backup storage now face the threat of permanently losing their property and being silenced in the process.

The owner of, in response to an inquiry by the author of this work, described the experiences felt when was shut down:

"In January 2012, I was working on a BIG project when my hard drive crashed (with all thevideos that I needed to complete it). After several minutes...Irealized that I had the majority of the same files stored on [M]egaupload. Ironically, this was the same day that [M]egaupload was seized by the government. I went to the website & was unable to recover any files. This seizure put a HUGE hardship on my business. I had to find a way to completethat project (w[ith]out it being 100%). Also, I was in the process of creating several videos that people had requested [and] were willing to pay for. [B]ut I could no longer produce them due to lack of contentthat was lost in the hard drive crash [and] [M]egaupload being seized."66

The current procedure does little to address the First Amendment rights that continue to be ignored. The EFF (Electronic Frontier Foundation) has been attempting the pressure the courts to unseal documents related to seizure to resolve this indeed "troubling" issue.67 Its purpose is to encourage publishers who used to come reach out to the EFF via The EFF then considers their issue, and if compelling enough, will represent the publisher for free, as is the case for this may help pressure the US government to reconsider whether it can use its heavy handed methods of copyright infringement with impunity, we are still left with the MGM decision and its adverse implications.

To resolve this infirmary against the First Amendment, it is clear that the courts consider the collateral damage done to third parties. The solution does not require eliminating secondary copyright liability or to otherwise inhibit rights holders from enforcing their copyrights.To accomplish this, the proper procedural protections must be respected by the judicial with the implementation of the prior restraint doctrine. Unfortunately, the courts still seem to have an issue equalizing the importance of speech online with physical print media, further compounding the issue of cavalier government seizure with casual judicial disregard of the serious First Amendment implications involved as a collateral matter.68 It is not enough that users can simply move on to another website - the Supreme Court has clearly stated that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere."69

Thus, the first step in correcting this issue, it would seem, is for the judicial system to take this variety of First Amendment abrogation more seriously. The courts must acknowledge that such enforcement actions must be governed by "narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms."70

The procedural safeguards provided by the prior restraint doctrine offer a resolution to this crisis. Prior restraint is"[a]ny government regulation that limits or conditions in advance the exercise of protected First Amendment activity constitutes a form of prior restraint..."71 and any such restraint comes "...bearing a heavy presumption against its constitutional validity."72 Not all prior restraints are constitutionally infirm; government action that inhibits free speech is "permissible despite an incidental prior burden on expression if it is justified by sufficiently strong permissible government interests."73 To overcome the presumption of unconstitutionality the Supreme Court has articulated the procedural requirements necessary to convince a court the action is warranted:

"First, the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor. Second, any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo. Third, a prompt final judicial determination must be assured."74

Finding a case illustrative of the current issue requires us to look back to 1989 and analogize to last century's primary form of information dissemination: books. Fort Wayne Books Inc. v. Indiana75 is a case regarding a book store that was raided on ex parte search and seizure warrant,76 meaning the defendant had no opportunity to contest the seizure prior to the warrant's execution. The defendant in the case challenged, among other things, the vagueness of the state's obscenity law, however the Court found this unavailing. However, where the defendant's argument gained traction was the challenge to the pretrial seizure order. The Court reasserted the importance of Marcus and presumed constitutional invalidity of prior restraint. This was a classic case of prior restraint, where the defendant was rendered incapable of distributing literature based only on the presumption that the entire inventory represented obscenity. The Court found such over breadth incompatible with First Amendment doctrine, stating that although "...a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing."77 The Court furthered that even if Fourth Amendment issues are in play and even if typically given great deference" is otherwise when materials presumptively protected by the First Amendment are involved...[it is the] risk of prior restraint which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials” that motivates this rule.78

Thus the Court made clear that it was not interested in how the state the state "couched" its seizure as a valid exercise under Indiana RICO law (Racketeering Influenced and Corrupt Organizations Act), "...this Court has recognized that the way in which a restraint on speech is “characterized” under state law is of little consequence.79 Additionally, the Court reiterated the paramount importance of the First Amendment, stating the expressive material are presumed protected and the RICO charge could only stand if "...the claimed justification for seizing books or other publications is properly established in an adversary proceeding."80

The application of the principles supra demonstrates both how such a resolution can protect both rights holders and the First Amendment. and provides the most obvious and relevant example. The first appropriate inquiry must be whether technology in question is capable of significant, non-infringing use? Here, both websites in question are capable of meeting this standard. However, the Betamax defense as applied has only addressed the permissibility of the technology and as in MGM, the Supreme Court has sidestepped the First Amendment issue. If the merits are never addressed,by implication the substantial, non-infringing uses such as the publication of information and exercise of free speech is also never addressed and therefore chilled. It is this practice that must end. Therefore, the second question (or a corollary of the first) becomes, would removal of the technology impose an unlawful prior restraint on free speech?

Functionally, the issues in Fort Wayne Books and are equivalent. In both circumstances, the government pursued a legitimate, so we are told, objective; in Fort Wayne it was obscenity, here it is copyright infringement. The distribution method is also analogous; in Fort Wayne, it was a book store, here it is The collateral damage repugnance in Fort Wayne is also at issue here; maybe some books were obscene, maybe some of's content was infringing. Clearly other than technology there is little justification why prior restraint doctrine could not be imported to modern distribution.

The solution proposed does not require protecting secondary infringers or weakening copyright laws, but it does require the courts to be more mindful of protecting free speech. Indeed, Breyer's concurrence which asked and answered in the positive whether Grokster was capable of significant, non-infringing uses comes close to the thoughtfulness required to ameliorate this issue.The finding that a technology was capable of substantial, non-infringing use was powerful enough for Breyer to realize that all secondary liability considerations become minimized for the sake of those other uses. However, instead of solely looking at the technological aspect, or deferring judgment based on procedural grounds, an extra step which questions First Amendment implications must then be examined under the prior restraint doctrine.

By doing so, even if is capable of substantial, non-infringing uses, but serious questions of secondary liability are still at issue, the courts could then isolate the copyright issue from the First Amendment issues. This would leave the rights holder free to continue its secondary infringement claim against, but also help to preserve the numerous publications that use third party websites to host files. If the government truly wanted to apply the prior restraint doctrine, considering the burden it imposes, those agencies conducting such investigations would preserve that option for only the most egregious violators of copyright law.

The Marcus Court and the line of cases reinforcing the prior restraint doctrine illustrate the importance of an adversarial hearing. Both issues deal with a mass seizure of both protected and unprotected speech. The Court in Marcus found "no opportunity was afforded the appellants to elicit and contest the reasons for the officer's belief, or otherwise to argue against the propriety of the seizure to the issuing judge", nor did the search warrant in question provide any guidance to distinguish the obscene from non-obscene.81 Ostensibly, it would appear the court's phobia regarding Grokster's size technological capabilities may translate over the But neither the fear of what technology can accomplish, nor should substantial evidence of secondary copyright liability, inhibit the freedom of speech. If the courts are afraid of the size of the network/potential copyright infringement at issue, they should be equally concerned with the expansive free speech issues that such a large network can support as well. As Brennan said in Marcus and is applicable here, “[m]ass seizure in the fashion of this case was thus effected without any safeguards to protect legitimate expression."82 Thus, even if a court were find the first prong of the Betamax defense applicable, but there was a prima facie case of secondary infringement (which appears likely with, there is no currently existing model that permits publishers like to challenge the seizure in the digital age.

In conclusion, adherence to the prior restraint doctrine should not be unduly burdensome on public agencies,however the loss of the "element of surprise" if agencies were to give notice prior to an enforcement action could be argued as problematic. It need not be as the solutions do not prevent the government from enforcing copyrights. It does not require the government to lose the element of surprise either. For example, if the doctrine of prior restraint were actually respected in the online realm during the raid, the DOJ could still seize the website. However, the DOJ would be required to follow procedural safeguards to protect free speech interests.The government would indeed have to conduct a more thorough investigation prior to the shutdown, isolating the infringing work it truly wants to target from legitimate uses of free speech. And even if the government wanted to shut down, all it needs to do is keep an avenue open for legitimate users to retrieve their work. This is not a technical impossibility considering the vast resources at the DOJ’s disposal. Thus the proposed solutions do not prevent the government from taking websites offline; it only forces the government to concentrate its efforts on the infringing party and not everyone else.

1 indictment,, (last visited 5/16/2013).
2 Indeed, a 2009 study by Arbor Networks and the University of Michigan found that's properties consumed twice as much bandwidth as Facebook and nearly half the amount used by all of Microsoft's properties combined (including the archaic Hotmail and competitive Bing properties.) Andy Greenberg, The "Mega" Sites: Bigger than Facebook,Forbes (Nov. 16, 2009),
3 Nick Perry, Popular file-sharing website Megaupload shut down, USA Today (Jan. 20, 2012),
4 Liam Tung, US shoots Megaupload 'file locker' defense, itnews (Feb. 20, 2012),,us-shoots-megaupload-file-locker-defence.aspx
5 Jon Brodkin, Before shutdown, Megaupload ate up more corporate bandwidth than Dropbox,ArsTechnica(Jan. 19, 2012),
6 Suzanne Choney, Megaupload user asks court to get his files back,(Apr. 2, 2012),
7 Ernesto, Feds, Please Return My Personal Files Stored at MegaUpload!,TorrentFreak(Jan. 20, 2012),
8 Trend Data (Adults),, (last visited May 16, 2013).
12 Sean Ludwig, MediaFire CEO: Unlike Megaupload, our business model isn't built on piracy, VentureBeat (Jan. 22, 2012),
13 Ian Wishart, Merry Chrischmitz, (Apr. 2010),, page 29.
14 Ian Wishart, Merry Chrischmitz, (Apr. 2010),, page 26.
15 Greg Sandoval, Nobody wanted MegaUploadbsted more than MPAA,Cnet(Feb. 1, 2012),
16 Application For A Warrant,Wired
17 John Callaham, $42 million in Megaupload assets seized in Hong Kong,Neowin (Jan. 22, 2012),
18 David Fisher, Dotcom birthday party targeted, The New Zealand Herald(Jan. 22, 2012),
19 Kim Dotcom Raid Video Shows Helicoptyers, Police Vans Used in Arrest of Megaupload Founder,Huffington Post,, (last visited May16, 2012).
20 Mike Masnick, New Zealand's High Court Steps Into Extradition Fight Over Kim Dotcom, TechDirt (Jun. 15, 2012),
21 Christopher MacManus, What MegaUpload founders stand to lose, Cnet (Jan. 19, 2012),
22 See DOJ Press Release: Department of Justice Seizes More Than $896,000 in Proceeds from the Online Sale of Counterfeit Sports Apparel,, (last visited May 16, 2012).
23 See affidavit,, (last visited May, 16, 2012).
24 Cindy Cohn, UnsealedCourt Records Confirm that RIAA Delays Were Behind Year-Long Seizure of Hip Hop Music Blog, EFF (May 3, 2012),
25 Suzanne Choney, Megaupload user asks court to get his files back, NBC News (Apr. 2, 2012),
26 Id.
27 Third Part Kyle Goodwin's Propose RE: Return of Property,, (last visited May 16, 2013).
28 "Chilling effect" was summarized by Justice Brennan in Walker v. City of Birmingham. The term is non-jargon and means exactly what it implies:
To give these freedoms the necessary "breathing space to survive,"...the Court has modified traditional rules of standing and prematurity. We have molded both substantive rights and procedural remedies in the face of varied conflicting interest to conform to our overriding duty to insulate all individuals from the "chilling effect" upon exercise of First Amendment freedoms generated by vagueness, overbreath and unbridled discretion to limit their exercise.
Walker v. City of Birmingham, 388, 344-45 (1967)(Brennan, J., dissenting).
29 Ward v. Rock Against Racism, 491 U.S. 781, 791(1989).
30 Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642–643, (1994).
31 Mark A. Lemley& Eugene Volokh, Freedom of Speech and Injunctions in Intellectual property Cases, UCLA (Nov. 1998),
32 New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
33 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
34 Street v.New York, 394 U.S. 576 (1969).
35 Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985).
36 Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976).
37 Boos v. Barry, 485 U.S. 312 (1988).
38 The Supreme Court held in Consolidated Edison Co:
Commission's suppression of bill inserts that discuss controversial issues of public policy directly infringes the freedom of speech protected by the First and Fourteenth Amendments and such state action is neither a valid time, place, or manner restriction, nor a permissible subject-matter regulation, nor a narrowly drawn prohibition justified by a compelling state interest and, accordingly, the regulation is invalid.
Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 537 (1980)
39 Sony Corporation v. Universal City, 464 U.S. 417(1984).
40 Id. at 456.
41 Id. at 451.
42 Metro-Goldwyn-Mayer Studios Inc. v. Grokster, 545 U.S. 913 (2005).

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