Operation In Our Sites Explained

Agency Name:National Intellectual Property Rights Coordination Center
Formed:2000
Jurisdiction:United States
Region Code:US
Employees:21 partner agencies including 17 key U.S. federal agencies, INTERPOL, EUROPOL and the governments of Canada and Mexico
Footnotes:NIPRCC leads the Operation in Our Sites initiative

Operation In Our Sites is an ongoing effort by the U.S. government's National Intellectual Property Rights Coordination Center to detect and hinder intellectual property violations on the Internet. Pursuant to this operation, governmental agencies arrest suspects affiliated with the targeted websites and seize their assets including websites' domain names. Web users intending to access targeted websites are directed to the server operated by the U.S. government, and greeted with a graphic bearing the seals of the United States Department of Justice (DOJ), the National Intellectual Property Rights Coordination Center (NIPRCC), and U.S. Immigration and Customs Enforcement (ICE).

Background

Legal background

In 2008, the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act of 2008, H.R. 4279) was established to increase civil and criminal penalties for trademark, patent and copyright infringement. The civil forfeiture provision of amended the PRO-IP Act and provided the legal basis of Operation In Our Sites.[1] [2] The provision provides that any property used to commit or facilitate infringement of intellectual property rights would be subject to forfeiture to the United States Government.

Policy background

To protect their intellectual property, major intellectual property owners and their representatives have strengthened U.S. government enforcement of intellectual property rights.[3] According to the Intellectual Property Enforcement Coordinator (IPEC), which was the position at the White House created by the PRO-IP Act through to coordinate U.S. governmental agencies that carry out the law's purpose,[4] several policy rationales informed intellectual property enforcement, including:[5]

NIPRCC also reasoned that Operation In Our Sites would protect consumers' health and safety[6] because Operation In Our Sites targets websites that sell counterfeit medicine.[7]

Domain name seizure process

"Operation In Our Sites was the most aggressive federal enforcement effort ever launched against copyright infringement online...the program would use an unprecedented tactic, site domain seizure, to shut down websites offering copyrighted material."

The domain name seizure process used by Operation In Our Sites was codified in (b)(2), which provides a legal framework for property seizures by the government. Before the seizure, government officials are supposed to investigate suspected websites to find out if they actually purchase or access counterfeit items. The government then contacts the copyright holders to confirm ownership of the intellectual property and suspected infringement. Following the investigation, ICE and NIPRCC officials present the resulting evidence to the U.S. Attorneys, and check the domain name registration.
If the domain name was registered in the U.S., the government petitions a magistrate judge to issue a seizure warrant for the domain name. With the warrant, the domain name's title and rights are transferred to the U.S. government. After the seizure, the government is supposed to send a written notice of the forfeiture deadline to the website operator within 60 days from the seizure date. The website owner can file the claim against the government within 35 days after receiving the notice. If the owner files a claim, the government has 90 days to prove that the property is subject to forfeiture. If the owner does not make a claim against the seizure, or the government successfully proves a valid seizure, the domain name is forfeited to the government.[8] [9]

See also: Search and seizure.

See also: Asset forfeiture.

Result of domain name seizure

After the seizure the domain name registry alters registered information about the domain name, including the IP address on its domain name server (DNS), as property of the U.S. government. When a user intends to access the website from a domain that has been seized, DNS servers reply with the government server's IP address. Initially a user who attempts to access the targeted website is directed to the governmental server and faced with the agencies' banner; in March 2014 this changed and users are instead redirected to YouTube in order to watch ICE's campaign video.

Outcome of the Operation In Our Sites

It is unclear how effective Operation In Our Sites has been in preventing websites that harm the U.S. economy, but agencies have seized a significant amount of funds and counterfeit goods from targeted websites. In April and May 2012, both DOJ and ICE released figures indicating that they had seized more than $896,000 funds and $1,500,000 counterfeit goods on commercial websites as a part of the Operation In Our Sites.[10] [11] [12] [13]

From June 2010 to late January 2014 the government has seized a total of 2,713 domain names[14] and as of December 2013, the ICE government banners on seized domain names have been viewed more than 122 million times.[15]

Project history

Project name Announcement date Number of domains seized Location References
First phase 2010-06-30 9/10 US [16] [17]
Cyber Monday Crackdown 2010-11-29 82/83 US
Third phase 2011-02-02 10 US [18]
Operation Broken Hearted 2011-02-14 18 US
Fifth phase 2011-05 5 US
Operation Shoe Clerk 2011-09 17 US
Operation Strike Out 2011-10-31 58 US
Cyber Monday 2 2011-11-28 152/156 US
Ninth phase 2011-12-04 10/12 US
2012-02-02 307/385 US [19]
2012-05-11 3 US [20]
Project Copy Cat 2012-07-12 70 US
of which 7 Salt Lake City [21]
Sustained Effort 11 US
2012-08-21 3 US [22]
Project Bitter Pill 2012-10-04 686 US [23]
Project Cyber Monday 3 2012-11-26 101 US [24]
Transatlantic I 2012-11-26 31 EU
Project Cyber Monday 3 2012-12-20 89 US [25]
Operation Red Zone 2013-01-31 313 US [26]
Transatlantic II 2013-06-26 328 EU [27]
Project Cyber Monday IV 2013-12-02 297 US [28]
Transatlantic III 2013-12-02 393 EU
2013-12-02 16 HK
Transatlantic IV 2014-06-20 188 EU [29]
Transatlantic V 2014-12-01 292 EU [30]
2014-12-01 29684 US [31]
Transatlantic VI 2015-11-30 999 EU [32]
2015-11-30 37479 US [33]
Transatlantic VII 2016-11-28 >4500 EU [34]
2016-11-28 ~15000 EU+US [35]
Transatlantic VIII 2017-11-27 20520 EU [36]
2017-11-27 29865 US [37]
Transatlantic IX 2018-11-26 33654 EU [38]
2018-11-26 ~1210000 US [39]

Criticism and commentary

Effectiveness for protecting intellectual property

Intellectual property owners and their representatives are not surprisingly supportive of Operation In Our Sites to the government,[40] [41] but some critics question the effectiveness of the program since the targeted websites are not actually seized or shut down; the program in effect only increases visitor access to agencies' servers. Accused website operators targeted by this program can circumvent Operation In Our Sites by registering a new domain name, one that cannot be regulated by the U.S., and easily resume operation.[42]

Due process critiques

In light of the U.S. Constitution, seizures without any opportunity for a hearing are limited to extraordinary situations,[43] but pursuant to Operation In Our Sites, others have pointed out that the government is allowed to seize a targeted domain name without any prior notice to the owner.[8] Other critics have voiced concern that domain name seizures could be used to circumvent the normal legal process in order to target websites that may prevail in full court.[44] In addition, other critics point that Operation In Our Sites' one-sided process inevitably brings mistakes and overly broad seizures.

See also: Due process.

Negative impact on free speech

Other critics have argued that seizures of domain through Operation in Our Sites prohibits access to all content on the allegedly infringing websites, and thus has a negative impact on free speech. Some types of targeted websites contained non-infringing speeches and conversation (ex. discussions in a chat-room, conversations in the comment section of blog posts); since the seizure operation redirects all traffic from the website, effects are felt on all material including the legitimate content that should be protected by the First Amendment of the U.S. Constitution.[8] [45]

Moreover, opponents of Operation In Our Sites have criticized ICE for erroneous seizure of non-infringing domain names, and the corresponding violation of the non-infringing domain holder's First Amendment rights. So far, three domain names (dajaz1.com, rojadirecta.com, and rojadirecta.org) have been seized by mistake and returned to their respective owners.

Undercutting the DMCA

Many domains targeted by Operation in Our Sites, including RojaDirecta and Dajaz1.com, were seized because they provided hyperlinks ("linked") to allegedly infringing material. Critics argue that use of government intervention to prevent websites from linking[52] to infringing materials undercuts the Digital Millennium Copyright Act by eliminating the copyright holders' incentive for interacting cooperatively with OSPs through the DMCA established notice and takedown system. Prior to Operation in Our Sites, copyright holders had to submit takedown notices[53] to OSPs if they wished to have links to copyright protected material removed. OSPs that complied with the takedown notices and the safe-harbor provisions outlined in the Online Copyright Infringement Liability Limitation Act received relief from the financial burden of legal fees, and damages associated with claims of secondary liability for copyright infringement.[54] [55] [56] [57] [58] If copyright holders forgo the notice and takedown provisions outlined in the DMCA and instead elect for direct government intervention through organizations like ICE, then the government may end up with sole responsibility for policing websites that link to copyright protected material. Furthermore, website owners will no longer have the ability to correct and improved wrongs without potentially facing criminal proceedings.[59]

Website owner lack of awareness

Hana Beshara, the public face and co-founder of NinjaVideo, was familiar with the Digital Millennium Copyright Act and expected that her NinjaVideo website would be subjected to DMCA takedown notices from copyright holders in response to infringing links on NinjaVideo; she was shocked when her house was raided by Immigration and Customs Enforcement Officers. Following the raid Beshara pleaded guilty to criminal copyright infringement and was sentenced to 22 months in prison, 2 years of probation and a hefty fine.[60]

Lobbying by the media industry

In an article published in the bimonthly political magazine The American Prospect, the author proposes that lobbying efforts on behalf of the media industry played a critical role in the adoption and implementation of Operation in Our Sites. The article further asserts that in the year prior to inception of Operation In Our Sites, large media conglomerates began providing ICE agents with lists of potential targets for the first round of raids. ICE was for some time responsible for regulating and eliminating sales of counterfeit merchandise, but pressure from the entertainment industry, through lobbying and other efforts, expanded the agency's function to include enforcement against piracy.[61] Lobbying spending by the TV, music and movie industry did in fact increase dramatically from 2004 to 2010; it peaked at $123 million in 2011, then dropped to around $118 million where it stayed from 2012 to 2013.[62]

See also

Notes and References

  1. Web site: Masnick. Mike. Tell The White House To Stop Illegally Seizing & Shutting Down Websites. techdirt. 24 February 2014. 2012-06-11.
  2. Web site: IPEC 2010 ANNUAL REPORT. Executive Office of the President. 20 March 2014.
  3. Web site: McSherry . Corynne . Zimmerman . Matthew . Amici Curiae brief of Electronic Frontier Foundation, Center for Democracy and Technology, and Public Knowledge in Support of Puerto 80'S Petition for Release of Seized Property . . 2 February 2014 . 2011 . 22.
  4. Web site: About IPEC. The Office of the U.S. Intellectual Property Enforcement Coordinator . 24 February 2014.
  5. Web site: 2010 Joint Strategic Plan on Intellectual Property Enforcement. Executive Office of the President of the United States. 24 February 2014. 2010.
  6. Web site: Operation In Our Sites. National Intellectual Property Rights Coordination Center. 24 February 2014.
  7. HSI seizes 686 websites selling counterfeit medicine to unsuspecting consumers . U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2012-10-04 . 2014-02-24.
  8. Kopel. Karen. Operation Seizing Our Sites: How the federal government is taking domain names without prior notice. Berkeley Technology Law Journal. 10.15779/Z384Q3M. 2013-09-16. 28, 2013. Number AR. 6 May 2019.
  9. Web site: Masnick. Mike. Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details.... Techdirt. 4 March 2014. 2011-12-08.
  10. Department of Justice Seizes More Than $896,000 in Proceeds From the Online Sale of Counterfeit Sports Apparel Manufactured in China . U.S. Attorney's Office District of Columbia . U.S. Attorney's Office District of Columbia . 2012-04-10 . 2014-03-01.
  11. More than $896,000 in proceeds seized from the online sale of counterfeit sports apparel manufactured in China . U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2012-04-10 . 2014-03-01.
  12. Department of Justice Seizes More Than $1.5 Million in Proceeds From the Online Sale of Counterfeit Sports Apparel Manufactured in China -Action Comes After Earlier Seizures of Another $896,000 in Proceeds . U.S. Attorney's Office District of Columbia . U.S. Attorney's Office District of Columbia . 2012-05-11 . 2014-03-01.
  13. More than $1.5M in proceeds seized from online sale of counterfeit sports apparel manufactured in China . U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2012-05-11 . 2014-03-01.
  14. Federal agencies seize more than $21.6 million in fake NFL merchandise during 'Operation Team Player': Over 50 people arrested; 5,000-plus websites seized in coordination with NFL . U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2014-01-30 . 2014-03-01.
  15. ICE, international law enforcement agencies seize 706 domain names selling counterfeit merchandise. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2013-12-02. 2014-03-01.
  16. Operation In Our Sites protects American online shoppers, cracks down on counterfeiters . U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2011-11-27 . 2019-06-20.
  17. ICE-led IPR Center seizes 70 websites duping consumers into buying counterfeit merchandise . U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2012-07-12. 2019-06-20.
  18. New York investigators seize 10 websites that illegally streamed copyrighted sporting and pay-per-view events. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2011-02-02. 2019-06-20.
  19. Agents and officers seize more than $4.8 million in fake NFL merchandise and seize 307 websites during 'Operation Fake Sweep'. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2012-02-02. 2019-06-20.
  20. Department of Justice Seizes More Than $1.5 Million in Proceeds from the Online Sale of Counterfeit Sports Apparel Manufactured in China. Department of Justice . Department of Justice . 2012-05-11. 2019-06-20.
  21. News: Dennis Romboy. Feds crackdown on websites allegedly selling fake NFL jerseys. 2012-07-13. Deseret News.
  22. Federal Courts Order Seizure of Three Website Domains Involved in Distributing Pirated Android Cell Phone Apps. Department of Justice . Department of Justice . 2012-08-21. 2019-06-20.
  23. Web site: HSI seizes 686 websites selling counterfeit medicine to unsuspecting consumers . Immigrations and Customs Enforcement News Room . ICE Office of Public Affairs . 1 March 2024 . English . 3 October 2012.
  24. ICE, European law enforcement agencies and Europol seize 132 domain names selling counterfeit merchandise in 'Project Cyber Monday 3' and 'Project Transatlantic' operations. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2012-11-26. 2019-06-20.
  25. Houston HSI seizes 89 websites selling counterfeit goods . U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2012-12-20. 2019-06-20.
  26. ICE, CBP, USPIS seize more than $13.6 million in fake NFL merchandise during 'Operation Red Zone' . U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2013-01-31. 2019-06-20.
  27. 328 internet domains selling counterfeit products targeted by law enforcement. Europol . Europol . 2013-06-26. 2019-06-20.
  28. 690 internet domain names seized because of fraudulent practices. Europol . Europol . 2013-12-02. 2019-06-20.
  29. 188 internet domain names seized for selling counterfeit products . Europol . Europol . 2014-06-20. 2019-06-20.
  30. 292 internet domain names seized for selling counterfeit products . Europol . Europol . 2014-12-01. 2019-06-20.
  31. ICE collaborates with industry and international law enforcement agencies to shutdown domain names selling counterfeit merchandise. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2014-12-01. 2019-06-20.
  32. Operation In-Our-Sites (IOS) takes down 999 websites selling counterfeit goods . Europol . Europol . 2015-11-30. 2019-06-20.
  33. Illegal websites seized in global operation. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2015-11-30. 2019-06-20.
  34. Over 4500 illicit domain names seized for selling counterfeit products . Europol . Europol . 2016-11-28. 2019-06-20.
  35. 'Operation In Our Sites' keeps Internet clear of fakes. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2016-11-28. 2019-06-20.
  36. Biggest hit against online piracy: Over 20 520 internet domain names seized for selling counterfeits . Europol . Europol . 2017-11-27. 2019-06-20.
  37. ICE targets fake websites on Cyber Monday. Washington. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2017-11-27. 2019-06-20.
  38. Operation takes down over 33 600 internet domains selling counterfeits goods . Europol . Europol . 2018-11-26. 2019-06-20.
  39. Over a million websites seized in global operation. Washington. U.S. Immigration and Customs Enforcement . U.S. Immigration and Customs Enforcement . 2018-11-26. 2019-06-20.
  40. Attorney General, ICE Announce Sweeping Anti-Piracy Initiative . . 2010-11-29 . 2014-02-24.
  41. Entertainment Industry Coalition Sends Letter to All Members of Congress Strongly Supporting Efforts by ICE to Combat Digital Theft and Counterfeiting of Movies, TV and other Products . . 2011-03-30 . 2014-02-24 . dead . https://web.archive.org/web/20140304120805/http://www.mpaa.org/resources/7b050dbd-187c-41b3-b705-426ba048b1af.pdf . March 4, 2014 .
  42. Web site: Sohn. David. Serious Questions about Domain Name Seizures. Center for Democracy and Technology. 3 March 2014. 2011-02-04.
  43. Fuentes v. Shevin. 407 . U.S. . 67 . 1972 . http://supreme.justia.com/cases/federal/us/407/67/case.html . 2014-03-01 .
  44. Web site: Wyden. Ronald. Letter from Sen. Ron Wyden to John Morton. 3 March 2014. 2011-02-02.
  45. Corynne McSherry . Matt Zimmerman . Government Violates Free Speech Rights with Domain Name Seizure . Electronic Frontier Foundation . Electronic Frontier Foundation . 2011-09-23 . 2014-03-01.
  46. News: Sisario. Ben. Music Web Sites Dispute Legality of Their Closing . 3 March 2014. The New York Times. 2010-12-19.
  47. Web site: ICE admits year-long seizure of music blog was a mistake. ars technica. 3 March 2014. Timothy B. Lee. 2011-12-08.
  48. Web site: Unsealed Court Records Confirm that RIAA Delays Were Behind Year-Long Seizure of Hip Hop Music Blog. Electronic Frontier Foundation. 3 March 2014. Cindy Cohn. Corynne McSherry. 2012-05-03.
  49. News: Singel. Ryan. Oops! Copyright Cops Return Seized RojaDirecta Domain Names – 19 Months Later. 3 March 2014. Wired.com. 2012-08-29.
  50. Web site: Puerto 80 v. US. 8 December 2011 . Electronic Frontier Foundation. 3 March 2014.
  51. United States of America v. rojadirecta.org and rojadirecta,com. U.S. District Court Southern District of New York . 2012-08-29 . https://www.wired.com/images_blogs/threatlevel/2012/08/Endorsed-Order-Vacating-Seizure-Warrants.pdf .
  52. Web site: Home About Our Work Deeplinks Blog Press Room Take Action Shop In the Matter of the Seizure of the Internet Domain Name "DAJAZ1.COM". Application and affidavit for seizure warrant. 2 May 2012 . Electronic Frontier Foundation. 20 March 2014.
  53. http://www.ca9.uscourts.gov/datastore/opinions/2007/05/30/0457143.pdf Perfect 10, Inc. v. CCBill, LLC, 488 F.3d 1102, 1113 (9th Cir. 2007).
  54. http://www4.law.cornell.edu/uscode/17/512.html 17 U.S.C. § (512(c)(3)(A)(i-vi))
  55. http://www4.law.cornell.edu/uscode/17/512.html 17 U.S.C. § 512(c)(3)(B)(ii)
  56. http://www4.law.cornell.edu/uscode/17/512.html 17 U.S.C. § 512(g)(2)(A)
  57. News: Linking to infringing content is probably illegal in the US. WebTVWire. 2006-09-12. 2006-10-12.
  58. http://www4.law.cornell.edu/uscode/17/512.html 17 U.S.C. § 512(c)(1)(C)
  59. Sellars. Andrew. Seized Sites: The In Rem Forfeiture of Copyright-Infringing Domain Names. 1835604.
  60. Web site: NinjaVideo Admin Phara Gets 22 Months In Jail, 500 Hours Of Community Service & Has To Pay MPAA $210k . Techdirt . 2012-01-06 . 2012-11-22.
  61. News: Fischer. Rob. A Ninja in Our Sites. 20 March 2014. The American Prospect. 15 December 2011.
  62. Web site: OpenSecrets.Org. Annual Lobbying on TV/Music/Movies. OpenSecrets.

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